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Guide to Community Care Law

Community care affects many people’s lives. It can affect you if you have a physical disability, a mental health illness or really any health condition which affects your life and your ability to live it. It may also affect you if you have a family member or friend who is suffering with such a health condition.

For those suffering with such conditions, e.g. a physical impairment from birth or caused by injury, dementia, a learning disability, Cerebral Palsy, they may need assistance with daily tasks such as personal care, shopping, cooking, or taking their medication. They may also need assistance with going out into the community and accessing leisure activities.

Your council, the local authority, is responsible for assessing people who may have community care needs and providing services, or money to fund the services, to those who are eligible for them.

What is a community care assessment?

A community care assessment is an assessment of an individual’s needs to determine what services they require in the community to support their physical or mental health disability. Under s9(1) of the Care Act 2014, where it appears an adult may need care and support, local authorities must assess this and what the adult’s needs are.

A community care assessment can be arranged through your GP or other medical professional referring you to social services. Alternatively, you or a family member or friend, can contact social services directly. You and your carer should be involved in the assessment process.

The assessment should be arranged within a reasonable amount of time. If you have to wait too long, you can make a complaint to the council or, in certain circumstances, issue judicial review proceedings against the council. Judicial review is a process started in the High Court where a judge is asked to consider the actions or a decision of a public body (e.g. your local council) on the grounds that the action/decision was unlawful or irrational (this is a simple view of judicial review solely for the purposes of this booklet).

In deciding how to meet an individual’s needs the local authority must have regard to certain factors; including the individual’s views, wishes, feelings and their ability to participate in the decision. An independent advocate may be involved as a means of support.

The well-being principle

Pursuant to paragraph 1(2) of the Care and Support (Eligibility Criteria) Regulations 2014, individual well-being is central to care and support, and this principle will guide the local authority in conducting its assessment. Individual well-being includes factors such as personal dignity, control over your day-to-day life, participation in work or education, and personal relationships.

Which council?

There will sometimes be disputes as to which council is responsible for an individual’s community care needs. It should be the council in which the individual is physically present at the time that carries out the assessment. Where an individual’s need for services is in the opinion of the council urgent, services can be provided prior to an assessment being completed (s19 of the Care Act).

What are community care services?

Community care services can cover a range of things, and will depend on the individual’s needs. Some examples include:

  • Carers attending to the individual in their home to assist with, for example, personal care
  • Carers helping the individual to access the community
  • Facilitating the individual’s attendance at a day centre
  • “Meals on wheels”
  • Respite services, i.e. short breaks away
  • Provision of equipment in the home
  • Adaptations in the home
  • Care in a care home

EXAMPLE

Jenny is 81 years old and has been diagnosed with Alzheimer’s. She lives alone in her flat and has some help from her niece, who comes to see her every evening. However, Jenny needs help to wash and dress in the morning, to take her medication and to ensure that she eats breakfast, and she needs help at lunch time again to ensure that she eats lunch. Jenny had a community care assessment, and now a carer comes once every morning and once every lunch time to help her, and this is arranged and paid for by her local council.

A council should not decide what services to provide or decide that an individual is not eligible to receive any services until the community care assessment has been completed.

After the assessment

Upon the local authority’s determination of the needs assessment and if the eligibility criteria is met, they must provide a written record (s13 of the Care Act). The eligibility criteria relates to a description specified in regulations of the local authority.

In certain circumstances it may be possible to challenge a council’s change in policy if, for example, they have not properly consulted people or have not considered the impact of any change on disabled people in their area.

Care plans

After a council has established that an individual has eligible needs, and what those needs are, a care plan will have to be prepared and this should be done together with the individual and their carer/relative where appropriate.

The care plan should detail the individual’s needs, how to meet those needs, and what services will be provided by the council. The care plan should also detail what support the individual’s carer will provide.

A copy of the care plan should be given to the individual. The assessment of needs and the care plan should be kept under review generally or reviewed on a reasonable request by or on behalf of the adult to whom it relates.

The care plan should still be formulated and given to the individual even where they have to pay for their own care.

Charging for community care services

Councils can charge for community care services. However, this should not be considered in the first instance.

The council should first:

  1. Carry out the community care assessment
  2. Confirm what eligible needs the person has
  3. Draft a care plan containing the services required to meet those needs.

Only then should a council carry out a financial assessment to determine what, if anything, that person needs to contribute towards the cost of their care.

The financial assessment will look at that individual’s income and capital, and determine whether or not they need to contribute, and if so how much.

Direct payments

Under s8(2) of the Care Act direct payments can be made as a way of meeting assessed needs. Direct payments should be made to persons for whom a council should provide services as a result of a community care assessment.

This means that if you have been assessed as eligible to receive services from the council for your community care needs you can, instead of receiving those services, receive direct payments and arrange the support you need yourself.

Once the council has decided that services are to be provided, then (unless an exemption applies) it can be required to provide direct payments in lieu of services. It is unlawful for the council to require reasons to be given by a potential recipient of direct payments as to why he or she wishes to have this facility.

The council must be satisfied that the assessed need will be met by providing direct payments. However, if of the contrary opinion, the council is obliged to give cogent reasons as to why this is the case.

This also applies to any assessed needs a carer has.

Payments will be calculated on the basis of the “reasonable cost of securing the provision of the service concerned”. The adult must have capacity to make the request and they, or a nominated person in agreement to receive the payments, are capable of managing them.

Direct payments can work well for some people who prefer to organise and manage their care themselves. This can provide greater independence but also requires more responsibility to be taken on.

Personal Budgets

Personal budgets are an allocation of funding given to individuals after an assessment to meet their assessed needs.

Individuals can either take their personal budget as a direct payment, or – while still choosing how their care needs are met and by whom – leave the council with the responsibility to commission the services. Alternatively, they can have a combination of the two.

Personal budgets can provide a good option for people who do not want to take on the responsibilities of direct payments.

A personal budget is the total amount of money allocated to a person by the council to meet their social care and support needs following an assessment.

A direct payment is the cash requested from the personal budget, which the person uses to buy the support they need.

Carers

Carers often play a very important role in the lives of disabled people. Section 10 of the Care Act provides for a “carer’s assessment.” Where it appears a carer may have needs for support, this must be assessed. A number of factors must be included and considered including the carer’s wishes.

Carers’ assessments

Carers who provide substantial and regular care should have a carer’s assessment, separate to any assessment of the disabled person’s needs, at the same time as the community care assessment.

The objective of an assessment is to identify the carer’s ability to provide and to continue to provide care, and what services the carer requires in his/her own right.

The assessment should look at the sustainability of the caring role, i.e. whether the carer is able and willing to carry on giving the same level of care. The risks to sustainability can include health risks to the carer, his/her own wishes to remain in work or return to work or undertake training, education or leisure activities.

Carers should be given the opportunity to have the assessment in private, i.e. not in the presence of the person for whom they are caring.

Disabled facilities grants

An individual with a disability may be eligible to receive a grant from the council to adapt their home to meet their needs.

The first step is to have a community care assessment, including an occupational therapy assessment, which concludes that certain adaptations are required in their home.

Adaptations could include, for example:

  • Widening of doorways so a wheelchair can fit through
  • Installing a ramp at the front door
  • Adapting a bathroom to make it safer or more accessible

The housing authority is responsible for the administration and payment of the grant, although the original application may be initiated by a social services authority following a community care assessment.

The grant will be subject to a means test. The means test is broadly similar to that used in calculating eligibility for housing benefit.

To qualify for the grant the person must be living in the accommodation as their only or main residence and for a period of at least 5 years from when the works are completed to the housing authority’s satisfaction.

Councils vs NHS

The duty to carry out a community care assessment and to provide services falls on the council. However, where the person suffers from a mental health disability, provision of care will normally come from the NHS. It is still however the local authority who should ensure the assessment is carried out and services provided accordingly.

Where individuals are receiving after-care under the Mental Health Act 1983, the duty to provide such care falls on both the Clinical Commissioning Group and the local authority.

If a person has been assessed as eligible for continuing healthcare, due to their physical health problems, the duty falls on the NHS to fund and provide services.

NHS continuing care

NHS continuing healthcare is available for people whose needs are mainly healthcare related. Continuing care is care given to meet the physical or mental health needs of people with a disability, injury or illness over an extended period of time. This care is arranged and funded by the NHS and is free of charge to the person receiving the care. This differs from care services provided by social services where there may be a charge

Clinical Commissioning Groups (CCGs) are required to arrange an assessment where health services might be needed. When an assessment is undertaken to determine whether a person is eligible for NHS continuing healthcare the assessors should consider the following healthcare needs:

  1. Behaviour
  2. Cognition (understanding)
  3. Communication
  4. psychological/emotional needs
  5. Mobility
  6. Nutrition
  7. Continence
  8. Skin
  9. Breathing
  10. Symptom control through drug therapies and medication
  11. altered states of consciousness
  12. Other signification needs

If the person has priority needs in particular areas or severe needs in at least two, then NHS continuing healthcare should be provided.

Questions?

If you have any questions, or need to know more about any of the topics in this pack or other community care issues, please feel free to contact one of our community care team using the contact details below and we would be happy to assist.

This guide is meant to be a helpful overview of the law and practice in this area.

It should not be used to diagnose specific problems. If, having read this guide, you feel you have a case you should seek specialist advice.

© Guile Nicholas Solicitors

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