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The Care Act 2014 came into effect on 1st April 2015. It brings together a number of different Acts into a single new Act that puts people and their carers in control of their care and support.

This quick read chapter provides key information about the Care Act 2014.


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Reviewing care and support plans is an important part of the care and support planning process, as people’s needs, circumstances and hopes change over time. Without regular reviews, plans can become out of date, meaning that people do not receive the right care and support to meet their needs.

This quick read provides key information about reviewing care and support plans.


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Councils have to promote an adult’s ‘wellbeing’. They have a duty to do this under the Care Act 2014.

This quick read provides key information about promoting wellbeing.


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The Mental Capacity Act 2005 is a law that supports people who may not be able to make some or any decisions for themselves about what they want.

This quick read provides key information about mental capacity.


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Getting the right information and advice helps people, carers and families make informed choices about their care and support and how they fund it. Councils must provide people with information and advice about care and support for adults and support for carers.

This quick read provides key information about information and advice.


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For someone to receive care and support from their local council, they must have needs that meet a certain level. These are called ‘eligible’ needs.

This quick read provides key information about eligibility.


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A direct payment is money paid by the council, to help buy the support it has assessed a person as needing. Direct payments help people organise and buy their own care, instead of the council providing it. This is set out in the Care Act.

This quick read provides key information about direct payments.


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Deprivation of liberty is a legal arrangement that allows staff in care homes and hospitals to restrain and restrict the liberty of adults in particular circumstances. However, this must first be authorised by the local authority (called deprivation of liberty safeguards) and it must be in the adult’s best interests.

This quick read provides key information about deprivation of liberty safeguards.


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The aim of an assessment is to find out what care and support needs an adult may have and what goals (also known as outcomes) they want to achieve to maintain or improve their situation. Assessments should help people to understand their strengths and abilities, areas of their life in which they need support and what help is available.

This quick read provides key information about assessment.


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Under the Care Act 2014 councils have a duty to in relation to safeguarding adults where there is a concern that they are experiencing, or at risk of, abuse or neglect. This quick read provides key information about adult safeguarding.

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This accessibility statement applies to the Knowsley Council APPP Portal.

This website is run by Knowsley Council. We want as many people as possible to be able to use this website. For example, that means you should be able to:

  • change colours and font sizes via our accessibility stylesheets
  • zoom in up to 300% without the text spilling off the screen
  • view all video content with subtitles on by default
  • navigate most of the website using just a keyboard
  • navigate most of the website using speech recognition software
  • listen to most of the website using a screen reader (including the most recent versions of JAWS, NVDA and VoiceOver)

We’ve also made the website text as simple as possible to understand.

AbilityNet has advice on making your device easier to use if you have a disability.

How accessible this website is

This web pages of this site are navigable via keyboard, and readable via screen-reader. However we cannot guarantee the accessibility of any linked files, such as PDFs and Word documents.

We add text alternatives for all images that contain vital information. When we publish new content we make sure our use of images meets accessibility standards.

Feedback and contact information

If you need information on this website in a different format like accessible PDF, large print, easy read, audio recording or braille, contact us via email – safeguardingqualityimprovement@knowsley.gov.uk

We’ll consider your request and get back to you shortly.

Reporting accessibility problems with this website

We’re always looking to improve the accessibility of this website. If you find any problems not listed on this page or think we’re not meeting accessibility requirements, contact us via email – safeguardingqualityimprovement@knowsley.gov.uk

Enforcement procedure

The Equality and Human Rights Commission (EHRC) is responsible for enforcing the Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018 (the ‘accessibility regulations’). If you’re not happy with how we respond to your complaint, contact the Equality Advisory and Support Service (EASS).

Technical information about this website’s accessibility

We are committed to making this website accessible, in accordance with the Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018.

Compliance status

This website is compliant with the Web Content Accessibility Guidelines version 2.2 AA standard, with non-compliances and exemptions listed below.

Non-accessible content

Disproportionate burden (Interactive tools and transactions)

Some of our interactive elements supplied by 3rd party developers/features, such as forms or recaptcha boxes, may be more difficult to navigate using a keyboard. For example, because some form controls are missing a ‘label’ tag.

Where we rely on 3rd party developers for key features we will work alongside them to develop and install any accessibility improvements that can be made to those features.

PDFs, images and other documents

Some of our content is supported by, or links out to, PDFs, images and Word documents supplied by other sources. We will aim, where possible, to ensure any linked documents or embedded images (created post-September 2018) in our control will be accessible.

Preparation of this accessibility statement

This statement was reviewed on 24/01/2024.

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Policy Partners Projects (“We”) are committed to protecting and respecting your privacy.

This policy sets out the basis on which any personal data we collect from you, or that you provide to us, will be processed by us. Please read the following carefully to understand our views and practices regarding your personal data and how we will treat it. By visiting this website you are accepting and consenting to the practices described in this policy.

For the purpose of the Data Protection Act 2018 (the “Act”), the data controller is Policy Partners Project of:

53 Greystones Grange Road, Sheffield, S11 7JH

Our nominated representative for the purpose of the Act is Angie Heal.

Information we may Collect From you

We may collect and process the following data about you:

  • Information you give us / Consent:
    You may give us information about you by filling in forms on this site or by corresponding with us by e-mail or otherwise. The information you give us may include your name, work title and e-mail address. By providing us with this information in order to use a service (e.g. signing up for email notifications or using an online contact form) you are giving us explicit consent to use the information to provide you with that service.
  • Information we collect about you:
    With regard to each of your visits to our site we may automatically collect the following information:

    • Anonymised technical information, including (if relevant) your login information, browser type and version, time zone setting, browser plug-in types and versions, operating system and platform;
    • Anonymised information about your visit, including the full Uniform Resource Locators (URL) clickstream to, through and from our site (including date and time); pages you viewed or searched for; page response times, download errors, length of visits to certain pages, page interaction information (such as scrolling, clicks, and mouse-overs), and methods used to browse away from the page.
  • Information we receive from other sources:
    We may receive information about you if you use any of the other websites we operate or the other services we provide. In this case we will have informed you when we collected that data that it may be shared internally and combined with data collected on this site. We are also working closely with third parties (including, for example, business partners, sub-contractors in technical, payment and delivery services, advertising networks, analytics providers, search information providers, credit reference agencies) and may receive information about you from them.

Cookies

Like most interactive web sites this Company’s website) (or ISP) uses cookies to enable us to retrieve user details for each visit. Cookies are used in some areas of our site to enable the functionality of this area and ease of use for those people visiting. Some of our affiliate partners may also use cookies.

Log Files

We use anonymised visitor data to analyse trends, administer the site, track visitor movements, and gather broad demographic information for aggregate use. Additionally, for systems administration, detecting usage patterns and troubleshooting purposes, our web servers automatically log standard access information including browser type, access times/open mail, URL requested, and referral URL. This information is not shared with third parties and is used only within this Company on a need-to-know basis. Any individually identifiable information related to this data will never be used in any way different to that stated above without your explicit permission.

Uses Made of the Information

We use information held about you in the following ways:

  • Information you give to us – we will use this information:
    • To carry out our obligations to provide you with the information, products and services that you request from us;
    • To notify you about changes to our service;
    • To ensure that content from our site is presented in the most effective manner for you and for your computer.
  • Information we collect about you – we will use this information:
    • To administer our site and for internal operations, including troubleshooting, data analysis, testing, research, statistical and survey purposes;
    • To improve our site to ensure that content is presented in the most effective manner for you and for your computer;
    • To allow you to participate in interactive features of our service, when you choose to do so;
    • As part of our efforts to keep our site safe and secure.
  • Information we receive from other sources:
    We may combine this information with information you give to us and information we collect about you. We may us this information and the combined information for the purposes set out above (depending on the types of information we receive).

Disclosure of Your Information

We may share your personal information with any member of our group, which means our subsidiaries, our ultimate holding company and its subsidiaries, as defined in section 1159 of the UK Companies Act 2006.

We will not share your personal information with third parties for marketing purposes, however we may share your information with selected third parties for the following reasons:

  • Business partners, suppliers and sub-contractors for the performance of any contract we enter into with them.
  • Anonymised data passed to analytics and search engine providers that assist us in the improvement and optimisation of our site.
  • In the event that we sell or buy any business or assets, in which case we may disclose your personal data to the prospective seller or buyer of such business or assets.
  • If Policy Partners or substantially all of its assets are acquired by a third party, in which case personal data held by it about its customers will be one of the transferred assets.
  • If legally required to do so to the appropriate authorities.

Where we Store Your Personal Data

The data that we collect from you may be transferred to, and stored at, a destination outside the European Economic Area (“EEA”). It may also be processed by staff operating outside the EEA who work for us or for one of our suppliers. By submitting your personal data, you agree to this transfer, storing or processing. We will take all steps reasonably necessary to ensure that your data is treated securely and in accordance with this privacy policy.

All information you provide to us is stored on our secure servers. Where we have given you (or where you have chosen) a password which enables you to access certain parts of our site, you are responsible for keeping this password confidential. We ask you not to share a password with anyone.

Unfortunately, the transmission of information via the internet is not completely secure. Although we will do our best to protect your personal data, we cannot guarantee the security of your data transmitted to our site; any transmission is at your own risk. Once we have received your information, we will use strict procedures and security features to try to prevent unauthorised access.

Access to / Deletion of Information

The Data Protection Act gives you the right to access information held about you. Your right of access can be exercised in accordance with the Act.

You may also contact us to request that we delete any personal information we hold about you.

Removal from Services

Where you have provided personal information for a specific service (for example giving us your email address in order to receive email notifications) we will provide the ability to opt-out of these systems via a hyperlink in any relevant email communication.

Changes to our Privacy Policy

Any changes we may make to our privacy policy in the future will be posted on this page and, where appropriate, notified to you by e-mail. Please check back frequently to see any updates or changes to our privacy policy.

Links from this Website

We do not monitor or review the content of other party’s websites which are linked to from this website. Opinions expressed or material appearing on such websites are not necessarily shared or endorsed by us and should not be regarded as the publisher of such opinions or material. Please be aware that we are not responsible for the privacy practices, or content, of these sites. We encourage our users to be aware when they leave our site & to read the privacy statements of these sites. You should evaluate the security and trustworthiness of any other site connected to this site or accessed through this site yourself, before disclosing any personal information to them. This Company will not accept any responsibility for any loss or damage in whatever manner, howsoever caused, resulting from your disclosure to third parties of personal information.

Copyright

Notice Copyright and other relevant intellectual property rights exists on all text relating to the Company’s services and the full content of this website.

Contact

Questions, comments and requests regarding this privacy policy are welcomed and should be addressed to angie.heal@policypartnersproject.co.uk

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1. Who does the Mental Health Act 1983 apply to?

The Mental Health Act 1983 (MHA), which was amended in 2007, provides ways of assessing, treating and caring for people who have a serious mental disorder that puts them or other people at risk. It sets out when:

  • people with mental disorders can be detained in hospital for assessment or treatment;
  • people who are detained can be given treatment for their mental disorder without their consent (it also sets out the safeguards people must get in this situation); and
  • people with mental disorders can be made subject to guardianship or aftercare, under supervision to protect them or other people.

Most of the MHA does not distinguish between people who have the mental capacity to make decisions and those who do not. Many people covered by the MHA have the mental capacity to make decisions for themselves.

Decision makers will need to decide whether to use either the MHA or Mental Capacity Act (MCA) to meet the needs of people with mental health problems who lack capacity to make decisions about their own treatment. Where someone with a mental health disorder is subject to a Community Treatment Order (CTO) or Guardianship under the MHA, and lacks capacity, they may have a Deprivation of Liberty Safeguards in place. Otherwise a person cannot be subject to the two frameworks at the same time.

Click here to view flowchart: Deciding whether the MHA and /or MCA can be used.

2. What are the Limits of the Mental Capacity Act?

The MCA provides legal protection for people who are caring for or treating a person who lacks mental capacity. But the principles of the MCA must be followed (see Principles, Mental Capacity) and action can only be taken if it is in the person’s best interests. This applies to care or treatment for physical and mental conditions, and can apply to treatment for people with mental disorders, however serious those disorders are.

The MCA does have its limits, for example a practitioner who is restraining an adult in their care only has protection if the restraint is:

  • necessary to protect the person who lacks capacity from harm; and
  • in proportion to the likelihood and seriousness of that harm.

The Deprivation of Liberty Safeguards (DoLS) provides safeguards for people who lack the mental capacity specifically to consent to treatment or care in either a hospital or registered care home that amounts to a deprivation of liberty, and detention under the MHA is not appropriate for them at that time. See also Deprivation of Liberty Safeguards chapter.

The MCA also does not allow for treatment to be given if it goes against a valid and applicable advance decision to refuse treatment (see Advance Care Planning chapter).

None of these restrictions apply to treatment for mental disorder given under the MHA – but other restrictions do.

3. When can a Person be Detained under the MHA?

A person can be detained for assessment under section 2 MHA if both of the following criteria apply:

  • the person is suffering from a mental disorder of a nature or degree which warrants their detention in hospital for assessment (or for assessment followed by treatment) for at least a limited period; and
  • the person ought to be so detained in the interests of their own health or safety or with a view to the protection of others.

A person can be detained for treatment under section 3 MHA if all the following criteria apply:

  • the person is suffering from a mental disorder of a nature or degree which makes it appropriate for them to receive medical treatment in hospital;
  • it is necessary for the health or safety of the person or for the protection of other persons that they should receive such treatment and it cannot be provided unless the patient is detained under this section; and
  • appropriate medical treatment is available.

Decision makers should consider using the MHA if they are not sure it will be possible, or sufficient, to rely on the MCA. They do not have to ask the Court of Protection to rule that the MCA does not apply before using the MHA.

If a clinician believes that they can safely assess or treat a person under the MCA, they do not need to consider using the MHA. In this situation, it would be difficult to meet the requirements of the MHA anyway. Certain serious treatments under the MCA, such as non-therapeutic sterilisation or withdrawal of artificial hydration or ventilation, must be referred to the Court of Protection for a final decision. Furthermore, a person should not be treated for a mental disorder or on a psychiatric ward under DoLS if they are likely to be treatable under the MHA.

A person cannot be treated under the MHA unless they meet the relevant criteria for being detained.

4. How does the MCA apply to a Patient subject to Guardianship under the MHA?

Guardianship gives someone (usually a local authority social care department) the exclusive right to decide where a person should live – but in doing so they cannot deprive the person of their liberty (see Deprivation of Liberty Safeguards). The guardian can also require the person to attend for treatment, work, training or education at specific times and places, and they can demand that a doctor, approved social worker or another relevant person have access to the person wherever they live. Guardianship can apply whether or not the person has the mental capacity to make decisions about care and treatment. It does not give anyone the right to treat the person without their permission or to consent to treatment on their behalf.

Decision makers must never consider guardianship as a way to avoid applying the MCA.

5. Community Treatment Orders

A Community Treatment Order (CTO) is used where it is necessary for the patient’s health or safety or for the protection of others to continue to receive treatment after their discharge from hospital. It seeks to prevent the ‘revolving door’ scenario and the harm which could arise from relapse.

A key feature of the CTO framework is that it is suitable only where there is no reason to think that the patient will need further treatment as a detained in-patient for the time being, but where the responsible clinician needs to be able to recall the patient to hospital if necessary.

5.1 Deprivation of liberty while on a CTO, leave or subject to guardianship

Patients who are on a CTO or on leave, and who lack capacity to consent to the arrangements required for their care or treatment, may occasionally need to be detained for further care or treatment for their mental disorder in circumstances in which recall to hospital for this purpose is not considered necessary. They might also need to be admitted to a care home or hospital because of physical health problems.

If the person is to be detained in a registered care home, a DoLS authorisation must be obtained. A deprivation of liberty can exist alongside a CTO or leave of absence, as long as there is no conflict with the conditions of the CTO or leave set by the patient’s responsible clinician.

If the person is to be detained in a hospital for further treatment for mental disorder (whether or not they will also receive treatment for physical health problems), they should be recalled so they can be treated under the MHA. The MCA cannot be used to authorise the deprivation of their liberty.

6. How does the Mental Capacity Act affect People covered by the Mental Health Act?

There is no reason to assume a person lacks mental capacity to make their own decisions just because they are subject under the MHA to:

  • detention;
  • guardianship; or
  • after-care under supervision.

People who lack mental capacity to make specific decisions are still protected by the MCA even if they are subject to the MHA (this includes people who are subject to the MHA as a result of court proceedings). But there are four important exceptions:

  • if a person is liable to be detained under the MHA, decision makers cannot normally rely on the MCA to give mental health treatment or make decisions about that treatment on someone’s behalf;
  • if a person can be given mental health treatment without their consent because they are liable to be detained under the MHA, they can also be given mental health treatment that goes against an advance decision to refuse treatment;
  • if a person is subject to guardianship, the guardian has the exclusive right to take certain decisions, including where the person is to live; and
  • Independent Mental Capacity Advocates (IMCAs) do not have to be involved in decisions about serious medical treatment or accommodation, if the decisions are made under the MHA (see Independent Mental Capacity Advocacy Service chapter).

7. What are the Implications for People who need Treatment for a Mental Disorder?

Under the MHA, subject to certain conditions, doctors can give treatment for mental disorders to detained patients without their consent – whether or not they have the mental capacity to give that consent.

Where Part 4 of the MHA applies, the MCA cannot be used to give medical treatment for a mental disorder to patients who lack mental capacity to consent. Nor can anyone else, like an attorney or a deputy, use the MCA to give consent for that treatment. This is because Part 4 of the MHA already allows clinicians, if they comply with the relevant rules, to give patients medical treatment for mental disorder even though they lack the capacity to consent. In this context, medical treatment includes nursing and care, habilitation and rehabilitation under medical supervision.

However, clinicians treating people for mental disorder under the MHA cannot simply ignore a person’s mental capacity to consent to treatment. As a matter of good practice (and in some cases in order to comply with the MHA) they will always need to assess and record:

  • whether patients have mental capacity to consent to treatment, and
  • if so, whether they have consented to or refused that treatment.

8. How does the Mental Health Act affect Advance Decisions to Refuse Treatment?

See also Advance Decisions to Refuse Treatment, Advance Care Planning chapter

The MHA does not affect a person’s advance decision to refuse treatment, unless the person can be treated for mental disorder without their consent. In this situation healthcare staff can treat patients for their mental disorder, even if they have made an advance decision to refuse such treatment.

But even then healthcare staff must consider a valid and applicable advance decision to refuse treatment as they would a decision made by a person with capacity at the time they are asked to consent to treatment. For example, they should consider whether they could use a different type of treatment which the patient has not refused in advance. If healthcare staff do not follow an advance decision, they should record this in the patient’s notes with reasons.

Even if a patient is being treated without their consent under Part 4 of the MHA, an advance decision to refuse other forms of treatment is still valid. Being subject to guardianship or aftercare under supervision does not affect an advance decision in any way.

9. Does the MHA affect the Duties of Attorneys and Deputies?

In general, the MHA does not affect the powers of attorneys and deputies. But there are two exceptions:

  • they will not be able to give consent on a patient’s behalf for treatment under Part 4 of the MHA, where the patient is liable to be detained under the Act; and
  • they will not be able to take decisions:
    • about where a person subject to guardianship should live, or
    • that conflict with decisions that a guardian has a legal right to make.

Being subject to the MHA does not stop patients creating new Lasting Powers of Attorney (if they have the mental capacity to do so), or does it stop the Court of Protection from appointing a deputy for them.

Attorneys and deputies are able to exercise patients’ rights under the MHA, if they have the relevant authority. In particular, some personal health and welfare attorneys and deputies may be able to apply to the First Tier Tribunal for the patient’s discharge from detention, guardianship or aftercare under supervision.

The MHA also gives various rights to a patient’s nearest relative (see MCA Code of Practice for further information).

Clinicians and others involved in the assessment or treatment of patients under the MHA should try to find out if the person has an attorney or deputy.

10. Does the MHA affect when Independent Mental Capacity Advocates must be instructed?

10.1 Independent Mental Capacity Advocates

See also Independent Mental Capacity Advocacy Service chapter

There is no duty to instruct an IMCA for decisions about serious medical treatment which is being provided under the MHA. Nor is there a duty to do so in respect of a move into accommodation, or a change of accommodation, if the person is required to live there because of an obligation under the MHA.

However, the rules for instructing an IMCA for patients subject to the MHA who may need serious medical treatment not related to their mental disorder are the same as for any other patient.

The duty to instruct an IMCA would also apply if accommodation is being planned as part of the aftercare under section 117 of the MHA following the person’s discharge (see 117 Aftercare chapter).

10.2 Independent Mental Health Advocates

Independent mental health advocacy services provide an additional safeguard for patients who are subject to the MHA. Independent Mental Health Advocates (IMHAs) are specialist advocates who are trained to work within the framework of the Act and enable patients to participate in decision-making, for example by encouraging them to express their views and supporting them to communicate their views. IMHAs should be independent of any person who has been professionally involved in the patient’s medical treatment.

IMHA services do not replace any other advocacy and support services that are available to patients, such as independent mental capacity advocates (IMCAs) or representatives for patients who lack mental capacity, and should work alongside these services.

11. Further Reading

11.1 Relevant chapters

Mental Capacity

Deprivation of Liberty Safeguards

11.2 Relevant information

Mental Capacity Act 2005 Code of Practice (2007)

Mental Health Act 1983: Code of Practice (2015)

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CQC Quality Statements

Theme 3 – How the local authority ensures safety in the system: Safe systems, pathways and transitions

We statement

We work with people and our partners to establish and maintain safe systems of care, in which safety is managed, monitored and assured. We ensure continuity of care, including when people move between services.

What people want

When I move between services, settings or areas, there is a plan for what happens next and who will do what, and all the practical arrangements are in place.

I feel safe and supported to understand and manage any risks.

Please note: In August 2023, the Supreme Court made a judgment in the case of R (Worcestershire County Council) v Secretary of State for Health and Social Care [2023] UKSC 31 which considered which of two local authorities was responsible for providing and paying for “aftercare services” under section 117 of the Mental Health Act. The effect of the judgment is that the law on section 117 and ordinary residence (as set out in the Care and Support Statutory Guidance and below) has not changed, and ordinary residence should be decided by looking at where the person was living immediately before their last detention. Disputes between local authorities regarding ordinary residence disputes will  be decided by the Secretary of State in the light of the Supreme Court judgment. See R (on the application of Worcestershire County Council) (Appellant) v Secretary of State for Health and Social Care (Respondent) – The Supreme Court.

September 2023: This chapter has been amended throughout and should be reread.

1. Introduction: What is Section 117 Aftercare?

The Mental Health Act 1983 Code of Practice (chapter 33) outlines how section 117 of the Act requires Integrated Care Boards (ICBs – formerly known as Clinical Commissioning Groups) and local authorities, working with voluntary agencies, to provide or arrange for the provision of aftercare to patients detained in hospital for treatment under:

  • section 3 – detained in hospital for treatment;
  • section 37 or 45A – ordered to go to hospital for treatment by a court;
  • section 47 or 48 – transferred from prison to hospital under sections of the Act.

This includes patients given leave of absence under section 17 and patients going on community treatment orders (CTOs). It applies to people of all ages, including children and young people.

2. Key Points about Section 117 Aftercare Services

(Click on image to enlarge it)

Diagram of the key points of section 117 aftercare services.

Aftercare services aim to meet a need arising from or related to the patient’s mental disorder and reduce the risk of a deterioration of their mental condition (and, accordingly, reducing the risk of them needing to be readmitted to hospital for treatment). Their aim is to maintain patients in the community, with as few restrictions as necessary, wherever possible.

ICBs and local authorities should interpret the definition of aftercare services broadly. For example, aftercare can include healthcare, social care and employment services, supported accommodation and services to meet the person’s wider social, cultural and spiritual needs – if these services meet a need that arises directly from or is related to their particular mental disorder, and help to reduce the risk of a deterioration in their mental condition.

Aftercare is a vital component in patients’ overall treatment and care. As well as meeting their immediate needs for health and social care, aftercare aims to support them in regaining or enhancing their skills, or learning new skills, to cope with life outside hospital (Mental Health Act 1983 Code of Practice).

2.1 Community treatment orders

The duty to provide aftercare services continues as long as the patient is in need of such services. In the case of a patient on a CTO, aftercare must be provided for the whole time they are on the CTO, but this does not mean that their need for aftercare will stop as soon as they are no longer on a CTO.

2.2 Deprivation of Liberty Safeguards

See Mental Capacity Deprivation of Liberty Safeguards chapter

The Deprivation of Liberty Safeguards Code of Practice highlights that safeguards cannot apply to people while they are detained in hospital under the Mental Health Act 1983 (MHA). The safeguards can, however, apply to a person who has previously been detained in hospital under the MHA.

Therefore, for those who are assessed as eligible for section 117 aftercare funding, and their needs are met in a care home or hospital (for physical treatment), they may be subject to restrictions that deprive them of their liberty. Deprivation of Liberty Safeguards (DoLS) can be used for any patient who is funded for their accommodation, care, and treatment under section 117.

There are some occasions where DoLS can be used together with the MHA, and these are referred to as ‘interfaces’ between the legislations, in which five test cases are applied to help determine eligibility. See Interface between the Mental Capacity Act 2005 and the Mental Health Act 1983 (amended 2007) chapter.

2.3 Ordinary residence

See Liverpool City Region Ordinary Residence Practice Guidance chapter

A key consideration when establishing a patient’s eligibility for section 117 aftercare funding is ordinary residence. Section 117(3) of the Act states the ICB, or local Health Board, and the local authority are responsible for funding aftercare in the following circumstances:

  1. if, immediately before being detained, the person was ordinarily resident in England (for the area in England in which they were ordinarily resident);
  2. if, immediately before being detained, the person was ordinarily resident in Wales, for the area in Wales in which they ordinarily resident; or
  3. in any other case for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which they were detained.

2.3.1 Ordinary residence disputes

The issue of ordinary residence can occur frequently as a reason for disagreement when health and social care services are planning safe discharges. Who Pays? NHS England guidance states that the original ICB remains responsible for the health part of a person’s section 117 aftercare funding once they have been discharged into the community.

The guidance also indicates the definition of ordinary residence must be considered alongside its interpretation under the Care Act 2014, where Regulation 3 must be considered. This includes:

Firstly, determining who the ‘lead authority’ is.  The regulations states this is the local authority which:

  1. is meeting the needs of the adult or carer to whom the dispute relates at the date on which the dispute starts; or
  2. if no local authority is meeting those needs at that date, is required to do so by regulation 2(3);

If it is unclear who the lead authority is, this is decided by considering section 2 of regulation 3:

  1. the local authority in whose area the adult needing care is living; or
  2. if the adult needing care is not living in the area of any local authority, the local authority in whose area that adult is present, must, until the dispute is resolved, carry out the duties under Part 1 of the Act for the adult or carer, as if the adult needing care was ordinarily resident in its area.

The guidance states:

By virtue of regulation 3(7) of the Care and Support (Disputes between Local Authorities) Regulations 2014/2829 disputes must still be referred to the Secretary of State if the local authorities in dispute cannot resolve the dispute within 4 months of the date on which it arose. On receipt of a referral, DHSC will consider, on a case-by-case basis whether the case raises issues similar to the ‘Worcestershire case’ and, depending on that consideration, how to treat that referral.

2.3.2 Dispute resolution map

(Click on image to enlarge it)

Diagram of section 117 dispute resolution process.

3. Planning Aftercare

The Mental Health Act 1983 Code of Practice states that although the duty to provide aftercare begins when the patient leaves hospital, the planning of aftercare needs to start as soon as the patient is admitted to hospital. ICBs and local authorities should take reasonable steps, in consultation with the care programme approach (CPA) care co-ordinator and other members of the multi-disciplinary team, to identify appropriate aftercare services for patients in good time for their eventual discharge from hospital or prison.

The duty to provide section 117 aftercare services to a person is triggered by the hospital providing them with care and treatment. If the Responsible Clinician (RC) is considering discharge, they should consider whether the patients aftercare needs have been identified and addressed. This would also apply in cases where the RC is granting extended s17 leave.

If the patient is having either a Hospital Managers Hearing or a Mental Health Tribunal, the ICB and local authority must be notified, as they will be expected to provide information as to what aftercare arrangements could be made available.

Aftercare for all patients admitted to hospital for treatment for mental disorder should be planned within the framework of the CPA. The CPA is an overarching system for coordinating the care of people with mental disorders.

3.1 Community Mental Health Framework for Adults and Older Adults

The Community Mental Health Framework for Adults and Older Adults sets out that people with mental health problems will be able to:

  • access mental health care where and when they need it, and be able to move through the system easily, so that people who need intensive input receive it in the appropriate place, rather than face being discharged to no support;
  • manage their condition or move towards their individual recovery on their own terms, surrounded by their families, carers and social networks, and supported in their local community;
  • contribute to and be participants in the communities that support them, to whatever extent is comfortable to them.

Every person who requires support, care and treatment in the community should have a co-produced and personalised care plan that considers all of their needs, as well as their rights, under the Care Act and section 117 of the MHA when required.

3.2 Care planning

The level of planning and coordination of care will vary, depending on how complex the person’s needs are. For people with more complex problems, who may require interventions from a number of different professionals, one person should have responsibility for coordinating care and treatment. This coordination role can be provided by workers from different professional backgrounds.

The care plan will include timescales for review, which should be discussed and agreed with the person and those involved in their care from the start. Digital technologies can be used to manage plans, and to allow users to manage their care or record advance choices.

Part of everyone’s role is to work with their community. Local authorities have developed community strengths-based approaches and the core skills of social workers include identifying and connecting people to their social networks and communities. Community connectors / social prescribing link workers must work closely with the all the community services and the local voluntary, community and social enterprise sector. The key functions of this role are to be familiar with the local resources and assets available in the community, vary the support provided, based on needs, and assess a person’s ability and motivation to engage with certain community activities.

The aftercare plan must reflect the needs of the patient and it is important to consider who needs to be involved, in addition to patients themselves. Taking the patient’s views into account, this may include:

  • the patient;
  • the nearest relative;
  • any carer who will be involved in looking after them outside hospital;
  • any attorney or deputy;
  • an independent mental health advocate;
  • an independent mental capacity advocate;
  • any other representative nominated by the patient;
  • the GP;
  • the responsible clinician;
  • a psychologist, community mental health nurse and other members of the community team;
  • nurses and other professionals involved;
  • an employment expert, if employment is an issue;
  • a representative of housing authorities;
  • in the case of a transferred prisoner, the probation service;
  • a representative of any relevant voluntary, community, faith and social enterprise agency;
  • a person to who the local authority is considering making direct payments for the patient.

Care planning requires a thorough assessment of the patient’s needs and wishes. It is likely to involve consideration of:

  • the patient’s continuing mental healthcare, whether in the community or on an outpatient basis;
  • their psychological needs and, where appropriate, their carers;
  • their physical healthcare;
  • their daytime activities or employment;
  • appropriate accommodation;
  • their identified risks and safety issues;
  • any specific needs arising from, for example co-existing physical disability, sensory impairment, learning disability or autistic spectrum disorder;
  • any specific needs arising from drug, alcohol or substance misuse (if relevant);
  • any parenting or caring needs;
  • social, cultural or spiritual needs;
  • counselling and personal support;
  • assistance in welfare rights and managing finances;
  • involvement of authorities and agencies in a different area, if the patient is not going to live locally;
  • the involvement of other agencies, for example the probation service or voluntary organisations (if relevant);
  • for a restricted patient, the conditions which the Secretary of State for Justice or the first-tier Tribunal has – or is likely to – impose on their conditional discharge; and
  • contingency plans (should the patient’s mental health deteriorate) and crisis contact details.

Professionals with specialist expertise should also be involved in care planning for people with autistic spectrum disorders or learning disabilities.

It is important that those who are involved can take decisions regarding their own involvement and, as far as possible, that of their organisation. If approval for plans needs to be obtained from more senior levels, it is important that this causes no delay to the implementation of the care plan.

If accommodation is to be offered as part of the aftercare plan to patients who are offenders, the circumstances of any victim of the patient’s offence and their families should be taken into account when deciding where the accommodation should be offered. Where the patient is to live may be one of the conditions imposed by the Secretary of State for Justice or the Tribunal when conditionally discharging a restricted patient (see Mental Health Act 1983 Code of Practice).

4. Funding Section 117 Aftercare

Section 117 aftercare services are free of charge to all relevant persons. The amount awarded by the local authority must be the amount it costs the local authority to meet the person’s needs. In establishing the ‘cost to the local authority’, consideration should be given to local market intelligence and costs of relevant local quality care and support provision to ensure that the personal budget reflects local market conditions and that appropriate care that meets needs can be obtained for the amount specified (see Personal Budgets chapter).

If, at any point, it becomes clear that a person who is be eligible for section 117 aftercare has been paying for services, they can reclaim these payments as long as clear evidence is provided of their detention in hospital or prison.

Direct payments can be made in respect of aftercare to the patient or, where the patient is a child or a person who lacks capacity, to a representative who consents to the making of direct payments in respect of the patient (see Direct Payments chapter). A payment can only be made if valid consent has been given. In determining whether a direct payment should be made, funding authorities must have regard to whether it is appropriate for a person with that person’s condition, taking into account the impact of that condition on the person’s life and whether a direct payment represents value for money. A payment can also, in certain circumstances, be made to a nominated person.

The relevant social services authority for the funding of section 117 is usually that where the person was ordinarily resident prior to their first detention on a qualifying section for s117, unless that local authority with the relevant ICB with good reason ended the s117 entitlement.

It is the responsibility of the local authority to hold a register of all those subject to section 117 within the authority. The local authority and ICB should maintain a record of whom they provide aftercare services for in their area and out of county.

5. Reviewing and Ending Section 117 Aftercare

Aftercare lasts as long as there is a need to be met and must remain in place until such a time that both the ICB and the local authority are satisfied that the patient no longer has needs for aftercare services. Care and treatment needs can be reviewed periodically by the ICB and the local authority, and aftercare can be altered as the person’s needs change.

Section 117 aftercare cannot be withdrawn without reassessing the person’s needs. The person must be fully involved in any decision-making process in relation to the ending of aftercare, including, if appropriate consultation with relevant carer/s and advocate/s.

Aftercare cannot be withdrawn simply because someone has been discharged from specialist mental health services, or an certain period has passed, or they have been returned to hospital and / or further detained under MHA and / or Mental Capacity Act (MCA).

If aftercare services area withdrawn, they can be reinstated if it becomes obvious that withdrawing the services was premature or unlawful.

The patient is entitled to refuse aftercare services and cannot be forced to accept them. It is important to note that just because someone may refuse services, this does not automatically mean that there is not a need, and therefore does not automatically mean that aftercare services should be withdrawn.

It may well be that whilst receiving s117 aftercare for a mental disorder, a person requires services for a separate physical or mental disorder, care for these would need to be addressed by a separate care plan under the Care Act.

10. Further Reading

10.1 Relevant chapter

Defining Mental Disorder

6.2 Relevant information

Coexisting severe mental illness and substance misuse: community health and social care services (NICE)

Transition between inpatient mental health and community and care home settings (NICE)

Appendix 1: Case Law – Ceasing to be Detained and on Leaving Hospital

In R (on the application of CXF (by his mother, his litigation friend)) v Central Bedfordshire Council [2018] EWCA Civ 2852, the Court considered whether:

  • the public body’s duty to provide after-care services to a detained patient extended to the funding of cost of visits of patient’s mother.
  • Whether mother’s expenses could be recovered as provision of after-care services.
  • Whether patient had left hospital and ceased to be detained on escorted day trips.

The facts

  1. The claimant had been diagnosed with autistic spectrum disorder, severe and profound learning disabilities, speech and language impairment and attention deficit hyperactivity disorder.
  2. From  June 2016 he had been detained as a patient for purposes of treatment under section 3 of the MHA 1983. Because of the limited number of specialist residential placements at which suitable treatment could be provided, he was detained at an institution in Norfolk some 120 miles from his parental home in Bedfordshire.
  3. Under section 17 MHA 1983 his clinician granted him a daily leave of absence to go on bus trips which could take place up to three times a day. Once a week his mother would make the 240 mile round trip to visit him and would go with him on some of these bus trips and help engage in other activities such as shopping, walks on beaches and visits to favourite museums.
  4. It was accepted by the court that these visits by the mother and the contact with her were therapeutically beneficial to him.
  5. The claimant argued that the expenses should be reimbursed under section 117 MHA 1983 which imposed a duty to provide ‘aftercare’ services to persons who were detained under the MHA and then ‘cease to be detained and … leave hospital.’

Decision

  1. The judge at first instance rejected the claim taking the view that neither the local authority nor the CCG were required to meet the mother’s travelling expenses. The judge considered that it was clear that the claimant remained at all times detained under the Act and had not left hospital even when he was enjoying a leave of absence under s 17.
  2. The appeal was dismissed and It was held:
  3. The claimant was still ‘detained’ in hospital for the purposes of s 117 MHA 1983 despite the grant of temporary leave of absence from time to time under s 17 MHA 1983.
  4. It was not, in the court’s view, realistic to suggest that the claimant had left hospital within the terms of s117 MHA 1983. The purpose of s117 was to arrange for the provision of services to a person who had been but was not currently being provided with treatment as a hospital patient.
  5. That purpose was only capable of being fulfilled if the person was not currently admitted to a hospital at which they were receiving treatment, which was not the case here.
  6. It was not necessary for the patient to have been discharged for the section to apply. Each return for a supervised trip did not amount to a readmission. The trips were part of the hospital treatment and did not constitute aftercare services to which the section applied.
  7. The claimant had not left hospital in the meaning of the section on these escorted day trips. Therefore, no expenses could be claimed under section 117 of MHA

Appendix 2: Rules in Relation to CTO Patients in the Community

There are two requirements for CTO patients in the community to be given medication for mental disorder. These are:

  • the usual authority: what would be required to give a patient medication if they were not subject to the MHA, that is:
    • the patient’s consent if the patient has capacity; or
    • in the patient’s best interest if the patient lacks capacity, but only if the patient does not resist or it is given with the authority of a person with a lasting power of attorney for health and welfare decisions
  • a certificate: the Part 4A certificate is signed by the Responsible Clinician (or Approved Clinician with responsibility for medication) if the patient has capacity and is consenting; the certificate is signed by a SOAD (Second opinion appointed doctor) if the patient lacks capacity.

CTO patients require a certificate.

The Supreme Court has held in Welsh Ministers v PJ [2018] UKSC 66 that there is no power to impose conditions on a CTO which has the effect of depriving a patient of his liberty. Hence if a person is subject to a CTO and a deprivation of liberty (DOL) the Court of Protection needs to authorise the DOL.

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1. Introduction

Mental health and mental wellbeing can have different meanings to each individual. If a person feels well they have good mental health they will be able to cope well with day to day life, make the most of their potential and partake fully in social, family, community and work related activity.

When a person does not feel that they are in a state of good mental health, it can affect their daily activity and their perception on life, so daily life, work and socialising with family, friends, colleagues and the wider community becomes difficult.

2. Mental Health Act 1983

In legal terms, the Mental Health Act 1983 (amended 2007) does not use the expression mental health, but refers to mental disorder.

2.1 Amendments to the Act

The amendments of the MHA in 2007 simplified the previous criteria and outlined mental disorder to be ‘any disorder or disability of the mind’.

Whist mental disorder is now classified as such, a diagnosis of a learning disability does not count for detention or treatment under the Act unless it is ‘associated with abnormally aggressive or seriously irresponsible conduct.’

People with a learning disability are considered under the MHA only if they exhibit behaviour that is ‘abnormally aggressive or seriously irresponsible’. A  person cannot be detained under the Act purely as a result of their learning disability alone.

Amendments to the Act also mean that people with personality disorders who used not to be detainable under the Act (because their disorders did not result in ‘abnormally aggressive or seriously irresponsible conduct on the part of the person concerned’) can now be detained.

There is still an exclusion that relates to a dependence on drink or drugs which means a person cannot be detained under the MHA 1983 solely for such a dependency, but they can be detained if it arises because of or from a mental disorder.

Chapter 2 of the Code of Practice to the MHA 1983 (2007) explains in further detail what illnesses may be considered under the Act and also references personality disorders and the MHA.

3. Further Reading

3.1 Relevant chapters

Section 117 Aftercare

Interface between the Mental Capacity Act 2005 and the Mental Health Act 1983

3.2 Relevant information

Mental Health Act 1983 Code of Practice 2007 (amended 2015)

Guidance for the Implementation of Changes to Police Powers and Places of Safety Provisions in the Mental Health Act 1983 (Department of Health and Social Care and the Home Office) 

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CQC Quality Statements

Theme 3 – How the local authority ensures safety in the system: Safeguarding

We statement

We work with people to understand what being safe means to them as well as our partners on the best way to achieve this. We concentrate on improving people’s lives while protecting their right to live in safety, free from bullying harassment, abuse, discrimination, avoidable harm and neglect. We make sure we share concerns quickly and appropriately.

What people expect

I feel safe and supported to understand and manage any risks.

1. Introduction

The key principle of Making Safeguarding Personal (MSP) is a person-centred and outcome focused approach to safeguarding adults. It emphasises that they adult concerned must always be at the centre of adult safeguarding, and that their wishes and views should be sought at the earliest opportunity.  MSP requires professionals to see adults as experts in their own lives and to work with them in order to identify strengths-based and outcomes focused solutions. Professionals must work in a way that enhances individual involvement, choice and control as part of improving quality of life, wellbeing and safety.

MSP seeks to achieve:

  • a personalised approach that enables safeguarding to be done with, not to, people;
  • practice that focuses on achieving meaningful improvement to people’s circumstances (outcomes) rather than just the process of ‘investigation’ and reaching a ‘conclusion’;
  • an approach that utilises social work skills rather than just ‘putting people through a process, with the ultimate aim of improving outcomes for people at risk of harm.

MSP is led by the Local Government Association (LGA) and by Association of Directors of Adult Social Services (ADASS).

The Care and Support Statutory Guidance also states:

‘…it is also important that all safeguarding partners take a broad community approach to establishing safeguarding arrangements. It is vital that all organisations recognise that adult safeguarding arrangements are there to protect individuals. We all have different preferences, histories, circumstances and life-styles, so it is unhelpful to prescribe a process that must be followed whenever a concern is raised …. Making safeguarding personal means it should be person-led and outcome-focused. It engages the person in a conversation about how best to respond to their safeguarding situation in a way that enhances involvement, choice and control as well as improving quality of life, wellbeing and safety. Nevertheless, there are key issues that local authorities and their partners should consider. (para 14.14-14.15)

2. Key Areas for Effective Practice

MSP can be divided into a number of key areas:

  • person led and person centred: being safe and well means different things to different people, this means the safeguarding process should be person-led and recognise people as the experts in their own lives. It should engage the person in a conversation about how best to respond to their safeguarding situation in a way that enhances involvement, choice and control as well as improving quality of life, wellbeing and safety. Professionals should be interested, and look for the full picture of a person’s experience.
  • focused on outcomes, not process: safeguarding is not about undertaking a process but is a commitment to improve outcomes by working alongside people experiencing abuse or neglect. The key focus is on developing a real understanding of what people wish to achieve, agreeing, negotiating and recording their desired outcomes, working out with them (and their representatives or advocates if they lack capacity) how best those outcomes might be realised and then seeing, at the end, the extent to which desired outcomes have been realised. This approach involves adults being encouraged to define their own meaningful improvements to change their circumstances and then to be involved throughout the safeguarding investigation, support planning and response.

3. Safeguarding Outcomes

A high quality service keeps people safe from harm. The Adult Social Care Outcomes Framework (ASCOF), reflects this priority, and emphasises the need for services to safeguard adults whose circumstances make them vulnerable and protect them from avoidable harm. Findings from this work have highlighted the clear benefits of asking adults about their experiences of support services.

4. Further Reading

4.1 Relevant chapter

Promoting Wellbeing

4.2 Relevant information

Resources to support Making Safeguarding Personal (LGA) – tools to support safeguarding practice

Making Safeguarding Personal Toolkit (LGA)

Making Safeguarding Personal Toolkit –  Case Studies (LGA and ADASS)

Revisiting Safeguarding Practice (DHSC) 

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CQC Quality Statements

Theme 3 – How the local authority ensures safety in the system: Safeguarding

We statement

We work with people to understand what being safe means to them as well as our partners on the best way to achieve this. We concentrate on improving people’s lives while protecting their right to live in safety, free from bullying harassment, abuse, discrimination, avoidable harm and neglect. We make sure we share concerns quickly and appropriately.

What people expect

I feel safe and supported to understand and manage any risks.

September 2023: A link has been added in Section 14.2, Relevant information to Gaining Access to an Adult Suspected to be at Risk of Neglect or Abuse published by SCIE.

1. The Local Authority’s Role in carrying out Enquiries

Local authorities must make enquiries, or cause others to do so, if they reasonably suspect an adult is at risk of, being abused or neglected (see Adult Safeguarding).

An enquiry is the action taken or instigated by the local authority in response to a concern that abuse or neglect may be taking place.

An enquiry could range from a conversation with the adult, or if they lack capacity, or have substantial difficulty in understanding the enquiry, their representative or advocate, prior to initiating a formal enquiry under section 42, right through to a much more formal multi-agency plan or course of action.

Whatever the course of subsequent action, the professional concerned should record:

  • the concern;
  • the adult’s views, wishes;
  • any immediate action taken; and
  • the reasons for those actions.

The purpose of the enquiry is to decide whether or not the local authority or another organisation, or person, should do something to help and protect the adult. If the local authority decides that another organisation should make the enquiry, for example a care provider, the local authority should be clear about:

  • timescales;
  • the outcomes of the enquiry;
  • what action will follow if this is not done.

What happens as a result of an enquiry should reflect the adult‘s wishes wherever possible. If they lack capacity it should be in their best interests if they are not able to make the decision, and be proportionate to the level of concern.

The adult should always be involved from the beginning of the enquiry unless there are exceptional circumstances that would increase the risk of abuse. If the adult has substantial difficulty in being involved, and where there is no one appropriate to support them, then the local authority must arrange for an independent advocate to represent them for the purpose of facilitating their involvement (see Independent Advocacy).

Professionals and other staff need to handle enquiries in a sensitive and skilled way to ensure distress to the adult is minimised. It is likely that many enquiries will require the input and supervision of a social worker, particularly the more complex situations and to support the adult to realise the outcomes they want and to reach a resolution or recovery. For example, where abuse or neglect is suspected within a family or informal relationship it is likely that a social worker will be the most appropriate lead. Personal and family relationships within community settings can prove both difficult and complex to assess and intervene in. The dynamics of personal relationships can be extremely difficult to judge and re-balance. For example, an adult may make a choice to be in a relationship that causes them emotional distress which outweighs, for them, the unhappiness of not maintaining the relationship.

Whilst work with the adult may frequently require the input of a social worker, other aspects of enquiries may be best undertaken by others with appropriate skills and knowledge. For example, health professionals should undertake enquiries and treatment plans relating to medicines management or pressure sores.

2. Criminal Offences and Adult Safeguarding

Everyone is entitled to the protection of the law and access to justice. Although the local authority has the lead role in making enquiries, where criminal activity is suspected, the early involvement of the police is likely to have benefits in many cases.

Behaviour which amounts to abuse and neglect also often constitutes specific criminal offences, for example:

  • physical or sexual assault or rape;
  • psychological abuse or hate crime;
  • wilful neglect;
  • unlawful imprisonment;
  • theft and fraud;
  • certain forms of discrimination of legislation.

For the purpose of court proceedings, a witness is competent if they can understand the questions and respond in a way that the court can understand. Police have a duty under legislation to assist those witnesses who are vulnerable and intimidated.

A range of special measures are available to facilitate the gathering and giving of evidence by vulnerable and intimidated witnesses. Consideration of specials measures should occur from the onset of a police investigation. In particular:

  • immediate referral or consultation with the police will enable the police to establish whether a criminal act has been committed and this will give an opportunity of determining if, and at what stage, the police need to become involved further and undertake a criminal investigation;
  • the police have powers to take specific protective actions, such as Domestic Violence Protection Orders (DVPO);
  • a higher standard of proof is required in criminal proceedings (‘beyond reasonable doubt’) than in disciplinary or regulatory proceedings (where the test is the balance of probabilities) and so early contact with police may assist in obtaining and securing evidence and witness statements;
  • early involvement of the police will help ensure that forensic evidence is not lost or contaminated;
  • police officers need to have considerable skill in investigating and interviewing adults with a range of disabilities and communication needs if early involvement is to prevent the adult being interviewed unnecessarily on subsequent occasions. Research has found that sometimes evidence from victims and witnesses with learning disabilities is discounted. This may also be true of others such as people with dementia. It is crucial that reasonable adjustments are made and appropriate support given, so people can get equal access to justice;
  • police investigations should be coordinated with health and social care enquiries but they may take priority, however the local authority’s duty to ensure the wellbeing and safety of the person continues;
  • guidance should include reference to support relating to criminal justice matters which is available locally from such organisations as Victim Support and court preparation schemes;
  • some witnesses will need protection;
  • the police may be able to get victim support in place.

Special Measures were introduced through legislation in the Youth Justice and Criminal Evidence Act 1999 and include a range of measures to support witnesses to give their best evidence and to help reduce some of the anxiety when attending court. Measures in place include the use of screens around the witness box, the use of live link or recorded evidence in chief and the use of an intermediary to help witnesses understand the questions they are being asked and to give their answers accurately.

Vulnerable adult witnesses have one of the following:

  • mental disorder;
  • learning disability;
  • physical disability.

These witnesses are only eligible for special measures if the quality of evidence that is given by them is likely to be diminished by reason of the disorder or disability.

Intimidated witnesses are defined as those whose quality of evidence is likely to be diminished by reason of fear or distress. In determining whether a witness falls into this category the court takes account of:

  • the nature and alleged circumstances of the offence;
  • the age of the witness;
  • the social and cultural background and ethnic origins of the witness;
  • the domestic and employment circumstances of the witness;
  • any religious beliefs or political opinions of the witness;
  • any behaviour towards the witness by the accused or third party.

Also falling into this category are:

  • complainants in cases of sexual assault;
  • witnesses to specified gun and knife offences;
  • victims of and witnesses to domestic abuse, racially motivated crime, crime motivated by reasons relating to religion, homophobic crime, gang related violence and repeat victimisation;
  • those who are older and frail;
  • the families of homicide victims.

Registered Intermediaries (RIs) facilitate communication with vulnerable witnesses in the criminal justice system.

A criminal investigation by the police takes priority over all other enquiries. Although a multi-agency approach should be agreed to ensure that the interests and personal wishes of the adult will be considered throughout, even if they do not wish to provide any evidence or support a prosecution. The welfare of the adult and others, including children, is paramount and requires continued risk assessment to ensure the outcome is in their interests and enhances their wellbeing.

If the adult has the mental capacity to make informed decisions about their safety and they do not want any action to be taken, this does not preclude the sharing of information with relevant professional colleagues. This enables professionals to assess the risk of harm and be confident that the adult is not being unduly influenced, coerced or intimidated and is aware of all the options. This will also enable professionals to check the safety and validity of decisions made. It is good practice to inform the adult that this action is being taken unless doing so would increase the risk of harm.

3. The Mental Capacity Act 2005

See also Mental Capacity.

People must be assumed to have capacity to make their own decisions and be given all practicable help before anyone treats them as not being able to make their own decisions. Where an adult is found to lack capacity to make a decision then any action taken, or any decision made for, or on their behalf, must be made in their best interests.

Professionals and other staff need to understand and always work in line with the Mental Capacity Act 2005 (MCA). They should use their professional judgement to balance competing views. They will need considerable guidance and support from their employers if they are to help adults manage risk in ways and put them in control of decision making if possible.

Regular face to face supervision from skilled managers is essential to enable staff to work confidently and competently in difficult and sensitive situations.

Mental capacity is frequently raised in relation to adult safeguarding. The requirement to apply the MCA in adult safeguarding enquiries (see Mental Capacity Act 2005 Code of Practice, Office of the Public Guardian) challenges many professionals and requires utmost care, particularly where it appears an adult has capacity for making specific decisions that nevertheless places them at risk of being abused or neglected.

3.1 Ill treatment and wilful neglect

See also Ill Treatment and Wilful (Deliberate) Neglect chapter 

The MCA created the criminal offences of ill treatment and wilful neglect in respect of people who lack the ability to make decisions. The offences can be committed by anyone responsible for that adult’s care and support – paid staff, but also family carers as well as people who have the legal authority to act on that adult’s behalf (that is persons with power of attorney or Court appointed deputies).

These offences are punishable by fines and / or imprisonment.

Ill treatment covers both deliberate acts of ill treatment and also those acts which are reckless which results in ill treatment.

Wilful neglect requires a serious departure from the required standards of treatment and usually means that a person has deliberately failed to carry out an act that they knew they were under a duty to perform.

3.2 Attorneys and deputies

If someone has concerns about the actions of an attorney acting under a registered enduring power of attorney (EPA) or lasting power of attorney (LPA), or a deputy appointed by the Court of Protection, they should contact the Office of the Public Guardian (OPG). The OPG can investigate the actions of a deputy or attorney and can also refer concerns to other relevant agencies.

When it makes a referral, the OPG will make sure that the relevant agency keeps it informed of the action it takes. The OPG can also make an application to the Court of Protection if it needs to take possible action against the attorney or deputy.

Whilst the OPG primarily investigates financial abuse, it is important to note that that it also has a duty to investigate concerns about the actions of an attorney acting under a health and welfare lasting power of attorney or a personal welfare deputy. The OPG can investigate concerns about an attorney acting under a registered enduring power of attorney or lasting power of attorney, regardless of the adult’s capacity to make decisions. Read about the role and powers of the OPG and its policy in relation to adult safeguarding.

4. Information Gathering

Diagram-1A-Information-gathering

If the issue cannot be resolved through these means or the adult remains at risk of abuse or neglect (real or suspected) then the local authority’s enquiry duty under section 42 continues until it decides what action is necessary to protect the adult and by whom and ensures itself that this action has been taken.

Principles for local decision making process:

  • empowerment: presumption of person led decisions and informed consent;
  • prevention: it is better to take action before harm occurs;
  • proportionate and least intrusive response appropriate to the risk presented;
  • protection: support and representation for those in greatest need;
  • partnership: local solutions through services working with their communities;
  • communities: have a part to play in preventing, detecting and reporting neglect and abuse;
  • accountability and transparency in delivering safeguarding;
  • feeding back whenever possible.

Decision making diagrams

Diagram-1B-part-1

Diagram-1B-part-2

5. When should an Enquiry take place?

Local authorities must make enquiries, or cause another agency to do so, whenever abuse or neglect are suspected in relation to an adult and the local authority thinks it necessary to enable it to decide what (if any) action is needed to help and protect the adult.

The scope of that enquiry, who leads it and its nature, and how long it takes, will depend on the particular circumstances.

It will usually start with asking the adult their view and wishes which will often determine what next steps to take.

Everyone involved in an enquiry must focus on improving the adult’s wellbeing and work together to that shared aim.

At this stage, the local authority also has a duty to consider whether the adult requires an independent advocate to represent and support the adult in the enquiry.

See Decision Making diagrams above, which highlight appropriate pauses for reflection, consideration and professional judgement and reflect the different routes and actions that might be taken.

6. Objectives of an Enquiry

The objectives of an enquiry into abuse or neglect are to:

  • establish facts;
  • ascertain the adult’s views and wishes;
  • assess the needs of the adult for protection, support and redress and how they might be met;
  • protect from the abuse and neglect, in accordance with the wishes of the adult;
  • make decisions as to what follow up action should be taken with regard to the person or organisation responsible for the abuse or neglect;
  • enable the adult to achieve resolution and recovery.

The first priority should always be to ensure the safety and wellbeing of the adult.

The adult should experience the safeguarding process as empowering and supportive. Practitioners should wherever practicable seek the consent of the adult before taking action. However, there may be circumstances when consent cannot be obtained because the adult lacks the capacity to give it, but it is in their best interests to undertake an enquiry.

Whether or not the adult has capacity to give consent, action may need to be taken if others are or will be put at risk if nothing is done or where it is in the public interest to take action because a criminal offence has occurred.

It is the responsibility of all staff and members of the public to act on any suspicion or evidence of abuse or neglect and to pass on their concerns to a responsible person or agency.

From BMA adult safeguarding toolkit:

…where a competent adult explicitly refuses any supporting intervention, this should normally be respected. Exceptions to this may be where a criminal offence may have taken place or where there may be a significant risk of harm to a third party. If, for example, there may be an abusive adult in a position of authority in relation to other vulnerable adults [sic], it may be appropriate to breach confidentiality and disclose information to an appropriate authority. Where a criminal offence is suspected it may also be necessary to take legal advice. Ongoing support should also be offered. Because an adult initially refuses the offer of assistance he or she should not therefore be lost to or abandoned by relevant services. The situation should be monitored and the individual informed that she or he can take up the offer of assistance at any time.

7. What should an Enquiry take into Account?

The wishes of the adult are very important, particularly where they have capacity to make decisions about their safeguarding. The wishes of those that lack capacity are of equal importance. Wishes need to be balanced alongside wider considerations such as the level of risk or risk to others including any children affected. All adults at risk, regardless of whether they have capacity or not may want highly intrusive help, such as the barring of a person from their home, or a person to be brought to justice or they may wish to be helped in less intrusive ways, such as through the provision of advice as to the various options available to them and the risks and advantages of these various options.

Where an adult lacks capacity to make decisions about their safeguarding plans, then a range of options should be identified, which help the adult stay as much in control of their life as possible (see Mental Capacity). Wherever possible, the adult should be supported to recognise risks and to manage them. Safeguarding plans should empower the adult as far as possible to make choices and to develop their own capability to respond to them.

Any intervention in family or personal relationships needs to be carefully considered. While abusive relationships never contribute to the wellbeing of an adult, interventions which remove all contact with family members may also be experienced as abusive interventions and risk breaching the adult’s right to family life if not justified or proportionate. Safeguarding needs to recognise that the right to safety needs to be balanced with other rights, such as rights to liberty and autonomy, and rights to family life. Action might be primarily supportive or therapeutic, or it might involve the application of civil orders, sanctions, suspension, regulatory activity or criminal prosecution, disciplinary action or deregistration from a professional body.

It is important, when considering the management of any intervention or enquiry, to approach reports of incidents or allegations with an open mind. In considering how to respond the following factors need to be considered:

  • the adult’s needs for care and support;
  • the adult’s risk of abuse or neglect;
  • the adult’s ability to protect themselves or the ability of their networks to increase the support they offer;
  • the impact on the adult, their wishes;
  • the possible impact on important relationships;
  • potential of action and increasing risk to the adult;
  • the risk of repeated or increasingly serious acts involving children, or another adult at risk of abuse or neglect;
  • the responsibility of the person or organisation that has caused the abuse or neglect;
  • research evidence to support any intervention.

8. Who can carry out an Enquiry?

Although the local authority is the lead agency for making enquiries, it may require others to undertake them. The specific circumstances will often determine who the right person is to begin an enquiry. In many cases a professional who already knows the adult will be the best person. They may be a social worker, a housing support worker, a GP or other health worker such as a community nurse. The local authority retains the responsibility for ensuring that the enquiry is referred to the right place and is acted upon.

The local authority, in its lead and coordinating role, should assure itself that the enquiry satisfies its duty under section 42 to decide:

  • what action (if any) is necessary to help and protect the adult;
  • by whom;
  • to ensure that such action is taken when necessary.

The local authority is able to challenge the body making the enquiry if it considers that the process and / or outcome is unsatisfactory.

8.1 Police

Where a crime is suspected and referred to the police, the police must lead the criminal investigations, with the local authority’s support where appropriate, for example by providing information and assistance. The local authority has an ongoing duty to promote the wellbeing of the adult in these circumstances by assessing, offering or organising care and support to ensure the wellbeing of the person by meeting their needs and ensuring their safety.

8.2 Employers

Employers must ensure that staff, including volunteers, are trained in recognising the signs or symptoms of abuse or neglect, how to respond and where to go for advice and assistance. These are best written down in shared policy documents that can be easily understood and used by all the key organisations.

Employers must also ensure all staff keep accurate records, stating what the facts are and what are the known opinions of professionals and others and differentiating between fact and opinion. It is vital that the views of the adult are sought and recorded. These should include the outcomes that the adult wants, such as feeling safe at home, access to community facilities, restricted or no contact with certain individuals or pursuing the matter through the criminal justice system.

9. What happens after an Enquiry?

Once the wishes of the adult have been ascertained and an initial enquiry undertaken, discussions should be undertaken with them as to whether further enquiry is needed and what further action could be taken.

That action could take a number of courses including:

  • disciplinary action;
  • complaints;
  • criminal investigations; or
  • work by contracts managers and CQC to improve care standards.

Those discussions should enable the adult to understand what their options might be and how their wishes might best be realised. Social workers must be able to set out both the civil and criminal justice approaches that are open and other approaches that might help to promote their wellbeing, such as therapeutic or family work, mediation and conflict resolution, peer or circles of support. In complex domestic circumstances, it may take the adult some time to gain the confidence and self-esteem to protect themselves and take action and their wishes may change. The police, health service and others may need to be involved to help ensure these wishes are realised.

10. Safeguarding Plans

Once the facts have been established, a further discussion of the needs and wishes of the adult is likely to take place. This could be focused safeguarding planning to enable the adult to achieve resolution or recovery, or fuller assessments by health and social care agencies (for example a needs assessment under the Care Act). This will entail joint discussion, decision taking and planning with the adult for their future safety and wellbeing. This applies if it is concluded that the allegation is true or otherwise, as many enquiries may be inconclusive.

The local authority must determine what further action is necessary. Where the local authority determines that it should itself take further action (for example, a protection plan), then the authority would be under a duty to do so.

The MCA is clear that local authorities must presume that an adult has the capacity to make a decision until there is a reason to suspect that capacity is in some way compromised; the adult is best placed to make choices about their wellbeing which may involve taking certain risks. Where the adult may lack capacity to make decisions about arrangements for enquiries or managing any abusive situation, their capacity must be assessed and any decision made in their best interests.

If the adult has the capacity to make decisions in this area of their life and declines assistance, this may limit the safeguarding intervention that organisations can make. The focus should then be on harm reduction. It should not however limit the action that may be required by the local authority to protect others who are at risk of harm. The potential for ‘undue influence’ will need to be considered if relevant. If the adult is thought to be refusing intervention on the grounds of duress then action must be taken.

In order to make sound decisions, the adult’s emotional, physical, intellectual and mental capacity in relation to self-determination and consent and any intimidation, misuse of authority or undue influence will have to be assessed. Read the guidance on the Mental Capacity Act: Making Decisions (Office of the Public Guardian, 2014) for information.

11. Taking Action

Once enquiries are completed, the outcome should be notified to the local authority which should then determine with the adult what, if any, further action is necessary and acceptable. It is for the local authority to determine the appropriateness of the outcome of the enquiry. One outcome of the enquiry may be the formulation of agreed action for the adult which should be recorded on their care plan. This will be the responsibility of the relevant agencies to implement.

In relation to the adult, this should set out:

  • what steps are to be taken to assure their safety in future in relation to identified risks;
  • the provision of any support, treatment or therapy including ongoing advocacy;
  • any modifications needed in the way services are provided (for example same gender care or placement; appointment of an Office of the Public Guardian deputy);
  • how best to support the adult through any action they take to seek justice or redress;
  • any ongoing risk management strategy as appropriate;
  • any action to be taken in relation to the person or organisation that has caused the concern.

12. Person Alleged to be Responsible for Abuse or Neglect

When a complaint or allegation has been made against a member of staff, including people employed by the adult, they should be made aware of their rights under employment legislation and any internal disciplinary procedures.

If a person who is alleged to have carried out the abuse themselves has care and support needs and is unable to understand the significance of questions put to them or their replies, they should be assured of their right to the support of an ‘appropriate’ adult if they are questioned in relation to a suspected crime by the police under the Police and Criminal Evidence Act 1984 (PACE). Victims of crime and witnesses may also require the support of an ‘appropriate’ adult.

Under the MCA, people who lack capacity and are alleged to be responsible for abuse, are entitled to the help of an Independent Mental Capacity Advocate, to support and represent them in the enquiries that are taking place (see Independent Mental Capacity Advocate Service). This is separate from the decision whether or not to provide the victim of abuse with an independent advocate under the Care Act.

The Police and Crown Prosecution Service (CPS) should agree procedures with the local authority, care providers, housing providers, and the NHS / Integrated Care Board (ICB) to cover the following situations:

  • action pending the outcome of the police and the employer’s investigations;
  • action following a decision to prosecute an individual;
  • action following a decision not to prosecute;
  • action pending trial;
  • responses to both acquittal and conviction.

Employers who are also providers or commissioners of care and support have a duty to the adult  and a responsibility to take action in relation to the employee when allegations of abuse are made against them. Employers should ensure that their disciplinary procedures are compatible with the responsibility to protect adults at risk of abuse or neglect.

With regard to abuse, neglect and misconduct within a professional relationship, codes of professional conduct and /or employment contracts should be followed and should determine the action that can be taken. Robust employment practices, with checkable references and recent disclosure and barring checks are important (see Disclosure and Barring Service). Reports of abuse, neglect and misconduct should be investigated and evidence collected.

Where appropriate, employers should report workers to the statutory and other bodies responsible for professional regulation such as the General Medical Council and the Nursing and Midwifery Council. If someone is removed from their role providing regulated activity following a safeguarding incident the regulated activity provider (or if the person has been provided by an agency or personnel supplier, the legal duty sits with them) has a legal duty to refer to the Disclosure and Barring Service (DBS). The legal duty to refer to the DBS also applies where a person leaves their role to avoid a disciplinary hearing following a safeguarding incident and the employer / volunteer organisation feels they would have dismissed the person based on the information they hold.

The standard of proof for prosecution is ‘beyond reasonable doubt’. The standard of proof for internal disciplinary procedures and for discretionary barring consideration by the DBS and the Vetting and Barring Board is usually the civil standard of ‘on the balance of probabilities’. This means that when criminal procedures are concluded without action being taken this does not automatically mean that regulatory or disciplinary procedures should cease or not be considered. In any event there is a legal duty to make a safeguarding referral to DBS if a person is dismissed or removed from their role due to harm to a child or a vulnerable adult.

13. Allegations against People in Positions of Trust

See also North West Policy for Managing Concerns around People in Positions of Trust with Adults who have Care and Support Needs

The local authority’s relevant partners and those providing universal care and support services, should have clear policies in line with those from the Safeguarding Adults Board for dealing with allegations against people who work, in either a paid or unpaid capacity, with adults with care and support needs. Such policies should make a clear distinction between an allegation, a concern about the quality of care or practice or a complaint.

Safeguarding adults boards need to establish and agree a framework and process for how allegations against people working with adults with care and support needs (that is those in positions of trust) should be notified and responded to. Whilst the focus of safeguarding adults work is to safeguard one or more identified adults with care and support needs, there are occasions when incidents are reported that do not involve an adult at risk, but indicate, nevertheless, that a risk may be posed to adults at risk by a person in a position of trust.

Where such concerns are raised about someone who works with adults with care and support needs, it will be necessary for the employer (or student body or voluntary organisation) to assess any potential risk to adults with care and support needs who use their services, and, if necessary, to take action to safeguard those adults.

Examples of such concerns could include allegations that relate to a person who works with adults with care and support needs who has:

  • behaved in a way that has harmed, or may have harmed an adult or child;
  • possibly committed a criminal offence against, or related to, an adult or child;
  • behaved towards an adult or child in a way that indicates they may pose a risk of harm to adults with care and support needs.

When a person’s conduct towards an adult may impact on their suitability to work with or continue to work with children, this must be referred to the local authority’s designated officer.

If a local authority is given information about such concerns they should give careful consideration to what information should be shared with employers (or student body or voluntary organisation) to enable risk assessment.

Employers, student bodies and voluntary organisations should have clear procedures in place setting out the process, including timescales, for investigation and what support and advice will be available to individuals against whom allegations have been made. Any allegation against people who work with adults should be reported immediately to a senior manager within the organisation. Employers, student bodies and voluntary organisations should have their own sources of advice (including legal advice) in place for dealing with such concerns.

If an organisation removes an individual (paid worker or unpaid volunteer) from work with an adult with care and support needs (or would have, had the person not left first) because the person poses a risk of harm to adults, the organisation must make a referral to the DBS. It is an offence to fail to make a referral without good reason.

Allegations against people who work with adults at risk must not be dealt with in isolation. Any corresponding action necessary to address the welfare of adults with care and support needs should be taken without delay and in a coordinated manner, to prevent the need for further safeguarding in future.

Local authorities should ensure that their safeguarding information and advice services are clear about the responsibilities of employers, student bodies and voluntary organisations, in such cases, and signpost them to their own procedures and legal advice appropriately. Information and advice services should also be equipped to advise on appropriate information sharing and the duty to cooperate (see Information and Advice chapter).

Local authorities should ensure that there are appropriate arrangements in place to effectively liaise with the police and other agencies to monitor the progress of cases and ensure that they are dealt with as quickly as possible, consistent with a thorough and fair process.

Decisions on sharing information must be justifiable and proportionate, based on the potential or actual harm to adults or children at risk and the rationale for decision making should always be recorded.

When sharing information about adults, children and young people at risk between agencies it should only be shared:

  • where relevant and necessary, not simply all the information held;
  • with the relevant people who need all or some of the information;
  • when there is a specific need for the information to be shared at that time.

14. Further Reading

14.1 Relevant chapters

Adult Safeguarding

Information Sharing and Confidentiality

14.2 Relevant information

Chapter 14, Safeguarding, Care and Support Statutory Guidance (Department of Health and Social Care)

Making Decisions on the Duty to carry out Safeguarding Adults Enquiries: Resources (LGA)

Gaining Access to an Adult Suspected to be at Risk of Neglect or Abuse (SCIE)

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CQC Quality Statements

Theme 3 – How the local authority ensures safety in the system: Safeguarding

We statement

We work with people to understand what being safe means to them as well as our partners on the best way to achieve this. We concentrate on improving people’s lives while protecting their right to live in safety, free from bullying harassment, abuse, discrimination, avoidable harm and neglect. We make sure we share concerns quickly and appropriately.

What people expect

I feel safe and supported to understand and manage any risks.

KNOWSLEY SPECIFIC INFORMATION

Knowsley Safeguarding Adults Procedures

1. Introduction

Each local authority must set up a Safeguarding Adults Board (SAB). The SAB’s overarching purpose is to help and safeguard adults with care and support needs by assuring itself that local safeguarding arrangements are in place, and partners are working well together to help prevent abuse and where possible providing a timely and proportionate response where abuse has occurred.

The SAB has a strategic role and oversees and leads adult safeguarding locally. It has an interest in a range of matters that contribute to the prevention of abuse and neglect, including:

  • oversees and leads adult safeguarding across the locality and will be interested in a range of matters that contribute to the prevention of abuse and neglect;
  • the safety of patients in its local health services;
  • the quality of local care and support services;
  • the effectiveness of prisons and approved premises in safeguarding offenders;
  • the awareness and responsiveness of further education services.

The SAB will need intelligence on safeguarding from all providers of health and social care in its locality (not just those with whom its members commission or contract). It is important that SAB partners feel able to challenge each other and other organisations where it believes that their actions or inactions are increasing the risk of abuse or neglect. This will include commissioners, as well as providers of services.

The SAB can be an important source of advice and assistance, for example in helping others improve their safeguarding mechanisms and practice. It is important that the SAB has effective links with other key partnerships in the locality and share relevant information and work plans. The SAB should consciously cooperate to reduce any duplication and maximise any efficiency, particularly as objectives and membership is likely to overlap.

An effective SAB will:

  • assure itself that safeguarding approaches in their area support the principles of personalisation;
  • work with partners and citizens to prevent abuse and neglect where possible;
  • ensure agencies and practitioners respond in a timely and proportionate manner when people raise safeguarding concerns;
  • learn from respond to safeguarding trends within their area;
  • ensure that individuals and organisations are competent in their delivery of safeguarding practice;
  • assure itself that safeguarding practice is continuously reviewed to ensure good quality and responsive practice, enhancing the quality of life for adults in its area. (Revisiting Safeguarding Practice, DHSC)

2. Core Duties of the Safeguarding Adults Board

A SAB has three core duties:

  • it must publish a strategic plan for each financial year that sets how it will meet its main objective and what the members will do to achieve this. The plan must be developed with local community involvement, and the SAB must consult the local Healthwatch organisation. The plan should be evidence based and make use of all available evidence and intelligence from partners to form and develop its plan;
  • it must publish an annual report detailing what the SAB has done during the year to achieve its main objective and implement its strategic plan, and what each member has done to implement the strategy as well as detailing the findings of any safeguarding adults reviews and subsequent action;
  • it must conduct any safeguarding adults review (see Section 5, Safeguarding Adults Reviews).

Safeguarding requires collaboration between partners in order to create a framework of inter-agency arrangements. Local authorities and their relevant partners must collaborate and work together as set out in the cooperation duties in the Care Act 2014 and, in doing so, must, where appropriate, also consider the wishes and feelings of the adult on whose behalf they are working.

Local authorities may cooperate with any other body they consider appropriate where it is relevant to their care and support functions. The lead agency with responsibility for coordinating adult safeguarding arrangements is the local authority, but all the members of the SAB should each designate a lead officer. Other agencies should also consider the benefits of having a lead for adult safeguarding.

Each SAB should:

  • identify the role, responsibility, authority and accountability with regard to the action each agency and professional group should take to ensure the protection of adults;
  • establish ways of analysing and interrogating data on safeguarding notifications that increase the SAB’s understanding of prevalence of abuse and neglect locally that builds up a picture over time;
  • establish how it will hold partners to account and gain assurance of the effectiveness of its arrangements;
  • determine its arrangements for peer review and self-audit;
  • establish mechanisms for developing policies and strategies for protecting adults which should be formulated, not only in collaboration and consultation with all relevant agencies but also take account of the views of adults who have needs for care and support, their families, advocates and carer representatives;
  • develop preventative strategies that aim to reduce instances of abuse and neglect in its area;
  • identify types of circumstances giving grounds for concern and when they should be considered as a referral to the local authority as an enquiry;
  • formulate guidance about the arrangements for managing adult safeguarding, and dealing with complaints, grievances and professional and administrative malpractice in relation to safeguarding adults;
  • develop strategies to deal with the impact of issues of race, ethnicity, religion, gender and gender orientation, sexual orientation, age, disadvantage and disability on abuse and neglect;
  • balance the requirements of confidentiality with the consideration that, to protect adults, it may be necessary to share information on a ‘need to know basis’ (see Case Recording Standards and Information Sharing chapter);
  • identify mechanisms for monitoring and reviewing the implementation and impact of policy and training;
  • carry out safeguarding adult reviews and determine any publication arrangements;
  • produce a strategic plan and an annual report;
  • evidence how SAB members have challenged one another and held other boards to account
  • promote multi-agency training and consider any specialist training that may be required. Consider any scope to jointly commission some training with other partnerships, such as the Community Safety Partnership.

See Care and Support Statutory Guidance paragraphs 14.133-14.161 for further information about Safeguarding Adults Boards.

3. Provision of Local Adult Safeguarding Procedures

See also Knowsley Safeguarding Adults Procedures

In order to respond appropriately where abuse or neglect may be taking place, anyone in contact with the adult, whether as a volunteer or in a paid role, must understand their own role and responsibility and have access to practical and legal guidance, advice and support. This will include understanding local inter-agency policies and procedures.

In any organisation, there should be adult safeguarding policies and procedures. These should reflect the Care and Support statutory guidance and the Decision Making Tree diagram 1B (see Section 4, Information Gathering, Safeguarding Procedures for Responding in Individual Cases) and are for use locally to support the reduction or removal of safeguarding risks, as well as to secure any support to protect the adult and, where necessary, to help the adult recover and develop resilience. Such policies and procedures should assist those working with adults know how to develop swift and personalised safeguarding responses and how to involve adults in this decision making. This, in turn, should encourage proportionate responses and improve outcomes for the people concerned. Procedures may include:

  • a statement of purpose relating to promoting wellbeing, preventing harm and responding effectively if concerns are raised;
  • a statement of roles and responsibility, authority and accountability sufficiently specific to ensure that all staff and volunteers understand their role and limitations
  • a statement of the procedures for dealing with allegations of abuse, including those for dealing with emergencies by ensuring immediate safety, the processes for initially assessing abuse and neglect and deciding when intervention is appropriate, and the arrangements for reporting to the police, urgently when necessary;
  • a full list of points of referral indicating how to access support and advice at all times, whether in normal working hours or outside them, with a comprehensive list of contact addresses and telephone numbers, including relevant national and local voluntary bodies;
  • an indication of how to record allegations of abuse and neglect, any enquiry and all subsequent action;
  • a list of sources of expert advice;
  • a full description of channels of inter-agency communication and procedures for information sharing and for decision making;
  • a list of all services which might offer access to support or redress;
  • how professional disagreements are resolved especially with regard to whether decisions should be made, enquiries undertaken for example.

The SAB should keep policies and procedures under review and report on these in the annual report as necessary. Procedures should be updated to incorporate learning from published research, peer reviews, case law and lessons from recent cases and Safeguarding Adults Reviews. The procedures should also include the provisions of the law – criminal, civil and statutory – relevant to adult safeguarding. This should include local or agency specific information about obtaining legal advice and access to appropriate remedies.

The Care Act requires that each local authority must arrange for an independent advocate to represent and support an adult who is the subject of a safeguarding enquiry or Safeguarding Adult Review where the adult has ‘substantial difficulty’ in being involved in the process and where there is no other suitable person to represent and support them (see Independent Advocacy chapter).

4. Responding to Abuse and Neglect in a Regulated Care Setting

It is important that all partners are clear where responsibility lies when abuse or neglect is carried out by employees or in a regulated setting, such as a care home, hospital, or college. The first responsibility to act must be with the employing organisation as provider of the service. However, social workers or counsellors may need to be involved in order to support the adult to recover.

When an employer is aware of abuse or neglect in their organisation, then they are under a duty to correct this and protect the adult from harm as soon as possible and inform the local authority, CQC and Integrated Care Board (ICB) where the latter is the commissioner.

Where a local authority has reasonable cause to suspect that an adult may be experiencing or at risk of abuse or neglect, then it is still has a duty to make (or cause to be made) whatever enquiries it thinks necessary to decide what if any action needs to be taken and by whom. The local authority may be reassured by the employer’s response so that no further action is required. However, a local authority would have to satisfy itself that an employer’s response has been sufficient to deal with the safeguarding issue and, if not, to undertake any enquiry of its own and any appropriate follow up action (for example referral to CQC, professional regulators).

The employer should investigate any concern (and provide any additional support that the adult may need) unless there is compelling reason why it is inappropriate or unsafe to do this. For example, this could be a serious conflict of interest on the part of the employer, concerns having been raised about non-effective past enquiries or serious, multiple concerns, or a matter that requires investigation by the police.

An example of a conflict of interest where it is better for an external person to be appointed to investigate may be the case of a family run business where institutional abuse is alleged, or where the manager or owner of the service is implicated. The circumstances where an external person would be required should be agreed locally. All those carrying out such enquiries should have received appropriate training.

There should be a clear understanding between partners at a local level when other agencies such as the local authority, CQC or ICB need to be notified or involved and what role they have. The Association of Directors of Adult Social Services (ADASS), Care Quality Commission, Local Government Association, National Police Chiefs Council and NHS England have jointly produced a high level guide on these roles and responsibilities: Safeguarding Adults Roles. The focus should be on promoting the wellbeing of those adults at risk.

Commissioners of care or other professionals should only use safeguarding procedures in a way that reflects the principles above not as a means of intimidating providers or families. Transparency, open mindedness and timeliness are important features of fair and effective safeguarding enquiries. CQC and commissioners have alternative means of raising standards of service, including support for staff training, contract compliance and, in the case of CQC; enforcement powers may be used.

Commissioners should encourage an open culture around safeguarding, working in partnership with providers to ensure the best outcome for the adult. A disciplinary investigation, and potentially a hearing, may result in the employer taking informal or formal measures which may include dismissal and possibly referral to the Disclosure and Barring Service (see Disclosure and Barring chapter).

If someone is removed by being either dismissed or redeployed to a non-regulated activity, from their role providing regulated activity following a safeguarding incident, or a person leaves their role (resignation, retirement) to avoid a disciplinary hearing following a safeguarding incident and the employer/volunteer organisation feels they would have dismissed the person based on the information they hold, the regulated activity provider has a legal duty to refer to the Disclosure and Barring Service. If an agency or personnel supplier has provided the person, the legal duty sits with that agency. In circumstances where these actions are not undertaken then the local authority can make such a referral.

5. Safeguarding Adults Reviews

There are different types of Safeguarding Adults Review:

  • SABs must arrange a Safeguarding Adults Review (SAR) when an adult in its area dies as a result of abuse or neglect, whether known or suspected, and there is concern that partner agencies could have worked more effectively to protect the adult;
  • SABs must also arrange a SAR if an adult in its area has not died, but the SAB knows or suspects that the adult has experienced serious abuse or neglect. In the context of SARs, something can be considered serious abuse or neglect where:
    • the individual would have been likely to have died but for an intervention;
    • has suffered permanent harm;
    • has reduced capacity or quality of life (whether because of physical or psychological effects) as a result of the abuse or neglect;
  • SABs are free to arrange for a SAR in any other situations involving an adult in its area with needs for care and support.

The SAB should be primarily concerned with weighing up what type of ‘review’ process will promote effective learning and improvement action to prevent future deaths or serious harm occurring again. This may be where a case can provide useful insights into the way organisations are working together to prevent and reduce abuse and neglect of adults.

Early discussions need to take place with the adult, family and friends to agree how they wish to be involved. The adult who is the subject of any SAR need not have been in receipt of care and support services for the SAB to arrange a review in relation to them.

See Care and Support Statutory Guidance paragraphs 14.162-179 and local Safeguarding Adults Boards procedures for further information.

6. Providing and Disseminating Information

6.1 People with care and support needs and their carers

Information should be produced in a range of different ways and in user friendly formats for people with care and support needs and their carers. Information should explain clearly:

  • what abuse is;
  • how to share any concerns;
  • how to make a complaint;
  • that their concerns or complaints will be taken seriously;
  • that concerns will be dealt with independently;
  • that they will be kept involved in the process to the degree that they wish to be;
  • that they will receive help and support in taking action on their own behalf;
  • that they can nominate an advocate or representative to speak and act on their behalf if they wish.

If an adult has no appropriate person to support them and has substantial difficulty in being involved in the local authority processes, they must be informed of their right to an independent advocate (see Independent Advocacy chapter). Where appropriate local authorities should provide information on access to appropriate services such as, for example, how to obtain independent legal advice or counselling services. The involvement of adults at risk in developing such communication is sensible.

6.2 Commissioners, providers and other staff

All commissioners or providers of services in the public, voluntary or private sectors should disseminate information about the multi-agency safeguarding adults policies and procedures.

Staff should be made aware through internal guidelines of what to do when they suspect or encounter abuse of adults in vulnerable situations.

This should be incorporated in staff manuals or handbooks detailing terms and conditions of appointment and other employment procedures so that individual staff members will be aware of their responsibilities in relation to safeguarding adults.

This information should emphasise that all those who express concern will be treated seriously and will receive a positive response from managers.

6.3 Local roles and responsibilities

Roles and responsibilities should be clear and collaboration should take place at all the following levels:

  • operational;
  • supervisory line management;
  • practice leadership;
  • strategic leadership within the senior management team;
  • corporate / cross authority;
  • chief officers / chief executives;
  • local authority members and local police and crime commissioners;
  • commissioners;
  • providers of services;
  • voluntary organisations;
  • regulated professionals.

6.3.1 Front line staff

Operational front line staff are responsible for identifying and responding to allegations of abuse and poor practice. Staff at operational level need to share a common view of what types of behaviour may be abuse or neglect and what to do as an initial response to a suspicion or allegation that it is or has occurred. This includes GPs. It is employers’ and commissioners’ duty to set these out clearly and reinforce regularly.

It is not for front line staff to second guess the outcome of an enquiry in deciding whether or not to share their concerns. There should be effective and well publicised ways of escalating concerns if immediate line managers do not take action in response to the concern being raised.

Concerns about abuse or neglect must be reported, regardless of the alleged source. It is imperative that poor or neglectful care is brought to the immediate attention of managers and responded to swiftly, including ensuring immediate safety and wellbeing of the adult. Where the source of abuse or neglect is a member of staff it is for the employer to take immediate action and record what they have done and why (similarly for volunteers and or students).

There should be clear arrangements in place covering what each agency should contribute at this level. These will cover approaches to enquiries and subsequent courses of action. The local authority is responsible for ensuring effective coordination at this level.

6.3.2  Supervision

Skilful and knowledgeable supervision focused on outcomes for adults is critically important in safeguarding work. Managers have a central role in ensuring high standards of practice and that practitioners are properly equipped and supported. It is important to recognise that dealing with situations involving abuse and neglect can be stressful and distressing for staff and workplace support should be available.

Managers need to develop effective working relationships with their counterparts in other agencies to improve cooperation locally and swiftly address any differences or difficulties that arise between front line staff or managers.

They should have access to legal advice when proposed interventions, such as the proposed stopping of contact between family members, or if it is unclear whether proposed serious and/or invasive medical treatment is likely to be in the best interests of the adult who lacks capacity to consent, require applications to the Court of Protection.

7. Senior Strategic Response

7.1 Practice leadership

All social workers undertaking work with adults should have access to a source of additional advice and guidance particularly in complex and contentious situations. Principal social workers are often well placed to perform this role or to ensure that appropriate practice supervision is available.

Principal social workers in the local authority are responsible for providing professional leadership for social work practice in their organisation and organisations undertaking statutory responsibilities on behalf of the local authority. Practice leaders / principal social workers should ensure that practice is in line with the Care and Support Statutory Guidance.

All providers of healthcare should have in place named professionals, who are a source of additional advice and support in complex and contentious cases within their organisation. There should be a designated professional lead in the Integrated Care Board (ICB), who is a source of advice and support to the governing body in relation to the safeguarding of individuals and is able to act as the lead in the management of complex cases.

All commissioners and providers of healthcare should ensure that staff have the necessary competences and that training in place to ensure that their staff are able to deliver the service in relation to the safeguarding of individuals. This is strengthened by the development of the Safeguarding Adults: Roles and Competences for Health Care Staff – Intercollegiate Document (RCN), which details the levels of training and competencies required for the different groups of staff in the organisations.

Many of the police investigators involved in safeguarding investigations have received specialist training in designated units. Each of those units has a set of arrangements to help provide advice and guidance to ensure that a thorough investigation takes place in order to achieve successful outcomes for the individual.

The police service itself has identified ways that enable non specialist officers to seek advice from supervisors at every stage of the safeguarding process, even when specialist departments are unavailable.

7.2 Strategic leadership within the senior management team

Each SAB member agency – local authority, ICB and police – should identify a senior manager to take a lead role in the organisational and in inter-agency arrangements, including the SAB. In order for the Board to be an effective decision making body providing leadership and accountability, members need to be sufficiently senior within their organisation and have the authority to commit the required resources and able to make strategic decisions. To achieve effective working relationships, based on trust and transparency, the members will need to understand the contexts and restraints within which their counterparts work.

All police forces in England and Wales have a head of public protection that has strategic management responsibility for all aspects of protecting people in vulnerable situations, including adults at risk. The role of the head of public protection is to build an effective working team and develop a multi-agency approach into alleged offences involving people in vulnerable circumstances. They will also have responsibility for managing and developing policy that ensures standardised processes of investigation and working practice throughout each force. The police and ICBs are now represented at a strategic level on every local safeguarding adults board and contact details for the individuals concerned will be available to the Board and all Board members.

7.3 Corporate / cross authority roles

To ensure effective partnership working, each organisation must recognise and accept its role and functions in relation to adult safeguarding. These should be set out in the SAB’s strategic plan as well as its own communication channels. They should also have protocols for mediation and family group conferences and for various forms of dispute resolution.

7.4 Chief Officers and Chief Executives

As chief officer for the leading adult safeguarding agency, the Director of Adult Social Services (DASS) has a particularly important leadership and challenge role to play in adult safeguarding.

Responsible for promoting prevention, early intervention and partnership working is a key part of a DASS’s role and also critical in the development of effective safeguarding. Taking a personalised approach to adult safeguarding requires a DASS promoting a culture that is person centred, supports choice and control and aims to tackle inequalities.

However, all officers, including the chief executive of the local authority, NHS executives and police chief officers should lead and promote the development of initiatives to improve the prevention, identification and response to abuse and neglect. They need to be aware of and able to respond to national developments and ask searching questions within their own organisations to assure themselves that their systems and practices are effective in recognising and preventing abuse and neglect. The chief officers must sign off their organisation’s contributions to the strategic plan.

7.5 Local authority elected members

Local authority elected members need to have a good understanding of the range of abuse and neglect issues that can affect adults and of the importance of balancing safeguarding with empowerment. Local authority members need to understand prevention, proportionate interventions, and the dangers of risk adverse practice and the importance of upholding human rights. Some SABs include elected members and this is one way of increasing awareness of members and ownership at a political level. Others take the view that members are more able to hold their officers to account if they have not been party to Board decision making, though they should always be aware of the work of the SAB. Managers must ensure that members are aware of any critical local issues, whether of an individual nature, matters affecting a service or a particular part of the community.

In addition, Local Authority Health Scrutiny Functions, such as the Council’s Health Overview and Scrutiny Committee, Health and Wellbeing Boards (HWBs) and Community Safety Partnerships can play a valuable role in assuring local safeguarding measures, and ensuring that SABs are accountable to local communities. Similarly, local Health and Wellbeing Boards provide leadership to the local health and wellbeing system; ensure strong partnership working between local government and the local NHS; and ensure that the needs and views of local communities are represented. HWBs can therefore play a key role in assurance and accountability of SABs and local safeguarding measures. Equally SABs may on occasion challenge the decisions of HWBs from that perspective.

7.7 Commissioners

Commissioners from the local authority, NHS and ICBs are all vital to promoting adult safeguarding. Commissioners have a responsibility to assure themselves of the quality and safety of the organisations they place contracts with and ensure that those contracts have explicit clauses that holds the providers to account for preventing and dealing promptly and appropriately with any example of abuse and neglect.

7.8 Providers of services

All service providers, including housing and housing support providers, should have clear operational policies and procedures that reflect the framework set by the SABs in consultation with them. This should include what circumstances would lead to the need to report outside their own chain of line management, including outside their organisation to the local authority. They need to share information with relevant partners such as the local authority even where they are taking action themselves. Providers should be informed of any allegation against them or their staff and treated with courtesy and openness at all times. It is of critical importance that allegations are handled sensitively and in a timely way both to stop any abuse and neglect but also to ensure a fair and transparent process. It is in no one’s interests to unnecessarily prolong enquiries. However some complex issues may take time to resolve.

7.9 Voluntary organisations

Voluntary organisations need to work with commissioners and the SAB to agree how their role fits alongside the statutory agencies and how they should work together. This will be of particular importance where they are offering information and advice, independent advocacy, and support or counselling services in safeguarding situations. This will include telephone or online services. Additionally, many voluntary organisations also provide care and support services, including personal care. All voluntary organisations that work with adults need to have safeguarding procedures and lead officers.

Regulated professionals

Staff governed by professional regulation (for example, social workers, doctors, allied health professionals and nurses) should understand how their professional standards and requirements underpin their organisational roles to prevent, recognise and respond to abuse and neglect.

8. Further Reading

8.1 Related chapters

Adult Safeguarding

Safeguarding Procedures in Individual Cases

Information Sharing and Confidentiality

8.2 Related information

Chapter 14, Safeguarding, Care and Support Statutory Guidance (Department of Health and Social Care)

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1. Introduction

The role of social worker brings with it a variety of challenges and complex situations practical, social, emotional. Social workers work closely with adults and families who are in need of support, usually at a times of stress or crisis. All social work interventions begin with an assessment of the person and their strengths and needs.

In order to understand the particular situation of the person and their family / carers fully and to appreciate the challenges that they are facing and the outcomes that they want, social workers need to be able to build relationships with adults and families. This includes being able to form a professional assessment of how all elements of the person’s life impact upon them and to keep this under regular review so that risks can be identified and addressed.

When social workers become involved with and adult this is often a difficult time for the person involved. Help from the local authority may be rejected, people may be angry, suspicious, depressed, upset, defensive and anxious. Even when adults are welcoming of help, there remains the need to maintain the appropriate professional boundary.

In this complex and demanding role, supervision is the main mechanism to ensure that the appropriate help is offered to enable adults to be safe and well by supporting, managing and developing staff who delivery a social work service.

Supervision has two main functions, learning and support and management, as outlined below.

1.1 Learning and support

Through learning and support, social workers are enabled to:

  • reflect and share their actions, feelings and concerns about their work in a safe environment with an experienced practitioner who can challenge, guide and encourage;
  • actively engage with supervision that aims to help them uncover assumptions and analyse judgements, clarify the focus of their work and identify changes that they need to make to their approach;
  • recognise when there are multiple and conflicting ideas, interpretations and perspectives to reach a professional judgement taking account of the complexity of people’s lives;
  • develop skills and identify strengths and areas for further learning so that social workers are aware of their own practice skills and needs for training and development;
  • feel supported so that they are able to continue to work well in a stressful and demanding environment with adults who are often at risk of, or experiencing, abuse or neglect;
  • adopt a strengths based based approach to assessment and care planning, which is informed by the principles of the Care Act 2014, the Mental Capacity Act 2005 and the Mental Health Act 2007;
  • review decisions to ensure that they are based on observation and analysis, exploring differences between opinion and fact, addressing any bias in situations of uncertainty in order to ensure that clear conclusions are reached and defensible judgements made.

1.2 Management

1.2.1 Quality and accountability

The organisation should ensure:

  • there is a culture of focused and critical thinking including the adult, carers and professionals’ views, chronology of critical events, social, economic, emotional / mental health issues;
  • social work interventions are planned and monitored, risks are identified and escalated as needed;
  • workloads are monitored to ensure safe practice;
  • the quality of work is reviewed and records kept to ensure clarity of purpose is clear and that decisions made are defensible and evidence based and underpinned by relevant legislation;
  • a person centred, holistic approach is taken to practice ensuring that actions are proportionate to risks and the procedures of the organisation.

1.2.2 Strength based approach

This ensures that:

  • practice reflects the requirements of the Care Act to ‘consider the person’s own strengths and capabilities, and what support might be available from their wider support network or within the community to help’ in considering ‘what else other than the provision of care and support might assist the person in meeting the outcomes they want to achieve’;
  • an approach that looks at a person’s life holistically, considering their needs in the context of their skills, ambitions, and priorities;
  • adults’ strengths are identified, including– personal, community and social networks – and maximise these strengths to help people achieve the outcomes they want;
  • support available from family and friends is considered in the light of their appropriateness, willingness and ability to provide this support and takes into account the impact on them;
  • the implementation of a strengths-based approach includes cultural and organisational commitment as well as frontline practice implementation;
  • practitioners have time to research and become familiar with community resources and that time is allowed for assessments to be undertaken appropriately and proportionately.

See also Assessment chapter, Section 16, Strengths and Capabilities and Strength Based Approaches (SCIE).

1.2.3 Supervision in multi-disciplinary teams

Models for multi-disciplinary working vary from co-located, fully integrated teams to virtual teams working in an integrated manner.

Whatever the model, there will be in place arrangements for line management and supervision. In multi-disciplinary teams, workers may not be managed by someone of their own profession. The manager will be responsible for the day to day running of the service, allocation and review of workloads, risk management and the performance of the service.

In these circumstances it is crucial to the safe running of the service that staff have supervision from someone from their own discipline to support and develop their clinical practice, professional development and service offered to adults.

2. Standards for Employers of Social Workers

The Local Government Association has produced standards for employers of social workers in England: Standards for Employers of Social Workers in England (Local Government Association)

The remainder of this chapter outlines those standards.

2.1 Purpose

The purpose of the Standards is to sustain high quality outcomes for adults, their families, carers, and communities in three main areas:

  • enabling employers to provide a well led, professional environment;
  • enabling social work professionals to maintain their professionalism;
  • enabling them to practice more effectively.

6.2 The Standards

There are eight standards, as outlined below.

  • Standard 1: clear social work accountability framework – employers should have in place a clear social work accountability framework informed by knowledge of good social work practice and the experience and expertise of adults, carers and practitioners.
  • Standard 2: effective workforce planning – employers should use effective workforce planning systems to make sure that the right number of social workers, with the right level of skills and experience, are available to meet current and future service demands.
  • Standard 3: safe workloads and case allocation – employers should ensure social workers have safe and manageable workloads.
  • Standard 4: managing risks and resources – employers should ensure that social workers can do their jobs safely and have the practical tools and resources they need to practice effectively. Assess risks and take action to minimise and prevent them.
  • Standard 5: effective and appropriate supervision – employers should ensure that social workers have regular and appropriate social work supervision.
  • Standard 6: continuing professional development – employers should provide opportunities for effective continuing professional development, as well as access to research and relevant knowledge.
  • Standard 7: professional registration – employers should ensure social workers can maintain their professional registration.
  • Standard 8: effective partnerships – employers should establish effective partnerships with higher education institutions and other organisations to support the delivery of social work education and continuing professional development.

Some of the standards set out above relate to the wider organisation. Standard 3, Standard 5 and Standard 6 relate to practice of supervision for frontline staff and managers. More detail is provided below.

3. Standard 3 – Safe Workloads and Case Allocation

The objective is to ensure social workers have safe and manageable workloads.

This standard is about protecting employees and service users from the harm caused by excessive workloads, long waiting lists and unallocated cases.

All employers should:

  • use a workload management system which sets transparent benchmarks for safe workload levels in each service area;
  • ensure each social worker’s workload is regularly assessed to take account of work complexity, individual worker capacity and time needed for supervision (Standard 5) and Continuing Professional Development (CPD) (Standard 6);
  • ensure that cases are allocated transparently and by prior discussion with the individual social worker, with due consideration of newly qualified social workers on Assessed and Supported Year in Employment (ASYE);
  • ensure that a social worker’s professional judgment about workload capacity issues is respected in line with the requirements of their professional registration (Standard 7);
  • take contingency action when workload demand exceeds staffing capacity; report regularly to strategic leaders about workload and capacity issues within services;
  • publish information about average caseloads for social workers within the organisation (Standard 1).

3.1 Useful information

Unison: Workload Management Guidance

5. Standard 5 – Effective and Appropriate Supervision

The objective is to ensure that social workers have regular and appropriate social work supervision.

This standard is about making high quality, regular supervision an integral part of social work practice. This should start with students on placement and continue through ASYE and throughout the individual’s social work career. Supervision should be based on a rigorous understanding of the Professional Capabilities Framework (PCF) and the Knowledge and Skills Statement for Social Workers in Adult Services. Supervision should challenge students and qualified practitioners to reflect critically on their practice and should foster an inquisitive approach to social work.

4.1 Frequency of supervision

All employers should make sure that supervision takes place:

  • regularly and consistently and last at least an hour and a half of uninterrupted time;
  • for students on placement – as agreed with student and higher education institution;
  • for newly qualified social workers – at least weekly for the first six weeks of employment of a newly qualified social worker, at least fortnightly for the duration of the first six months, and a minimum of monthly supervision thereafter;
  • for social workers who have demonstrated capability at ASYE level and above – in line with identified needs, and at least monthly;
  • monitor actual frequency and quality of supervision against clear statements about what is expected.

4.2 Quality of supervision

All employers should:

  • ensure that social work supervision is not treated as an isolated activity by incorporating it into the organisation’s social work accountability framework;
  • promote continuous learning and knowledge sharing through which social workers are encouraged to draw out learning points by reflecting on their own practice in the light of experiences of peers;
  • ensure that the PCF, at an appropriate level, is used as the basis for evaluating capability and identifying development needs;
  • ensure that supervision supports students and qualified social workers to meet Social Work England Professional Standards;
  • encourage social workers to plan, reflect continuing professional development (CPD) activity, including logging it online with Social Work England;
  • provide regular supervision training for social work supervisors;
  • assign explicit responsibility for the oversight of appropriate supervision and for issues that arise through supervision;
  • provide additional professional supervision by a registered social worker for practitioners whose line manager is not a social worker.

6.4.3 Useful information

Supervision, Social Work England

BASW supervision policy

5. Standard 6: Continuing Professional Development

The objective is to provide opportunities for effective continuing professional development, as well as access to research and relevant knowledge.

This standard is about social workers being able to build a robust and up to date knowledge and skill base through effective CPD and access to research, evidence and best practice guidance. Employers should facilitate career-long learning and empower social workers to work confidently and effectively with the children, adults and families they have been trained to support. Employers should also understand the statutory requirement for social workers in England to undertake CPD, as outlined in Social Work England Guidance.

5.1 Supporting staff development

All employers should:

  • have effective induction systems and put in place tailored support programmes for ASYEs, including protected development time, a managed workload, tailored supervision and personal development plans;
  • have an appraisal or performance review system which assesses how well professional practice is delivered and identifies a learning and development plan to support the achievement of objectives;
  • provide time, resources and support for CPD;
  • have fair and transparent systems to enable social workers to develop their professional skills and knowledge throughout their careers through an entitlement to formal and informal CPD, including practice educator and / or specialist training as appropriate;
  • encourage social workers to plan, reflect on and record CPD activity, including logging it online with Social Work England.

5.2 Promoting research based practice

All employers should:

  • support their social workers to make decisions and pursue actions that are informed by robust and rigorous evidence so that service users can have confidence in the service they receive;
  • enable social workers to work with others engaged in research and practice development activities in universities, professional bodies and trade unions to develop the evidence base for good practice;
  • ensure that practice educators are able to contribute to the learning, support, supervision and assessment of students on qualifying and CPD programmes.

6.5.3 Useful information

ASYE Information, resources and case studies

BASW: Continuing Professional Development Policy

Research in Practice for Adults (RiPFA)

Skills for Care: continuing to develop social workers

Post-qualifying Standards for Social Work Practice Supervisors in Adult Social Care

Professional Capabilities Framework

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CQC Quality Statements

Theme 3 – How the local authority ensures safety in the system: Safe systems, pathways and transitions

We statement

We work with people and our partners to establish and maintain safe systems of care, in which safety is managed, monitored and assured. We ensure continuity of care, including when people move between services.

What people expect

When I move between services, settings or areas, there is a plan for what happens next and who will do what, and all the practical arrangements are in place.

I feel safe and supported to understand and manage any risks.

1. Introduction

People with care and support needs may decide to move home just like anyone else, for example to be closer to family, for education or employment opportunities, or because they simply want to live in another area. Where they do decide to move to a new local authority area and as a result their ordinary residence status will change (see Ordinary Residence chapter), it is important to ensure that care and support is in place during the move, so the person’s wellbeing is maintained.

In circumstances where a person is receiving local authority support and moves within their current local authority (for example, moving between homes in the same area), they remain ordinarily resident within that authority and it must continue to meet their needs. Where the person chooses to live in a different local authority area, the local authority that is currently arranging care and support and the authority to which they are moving must work together to ensure that there is no interruption to the person’s care and support.

This chapter sets out the process local authorities must follow to ensure that the person’s care and support continues, without disruption, during and after the move. These procedures also apply where the person’s carer is receiving support and will continue to be required after the move. In addition to meeting their responsibilities set out in this chapter, the current local authority has other responsibilities that continue to apply during this process (see the chapters on Promoting Wellbeing, Preventing, Reducing or Delaying Needs, Information and Advice, Integration, Cooperation and Partnerships, Assessment, Eligibility and Care and Support Planning chapters).

The aim of this process is to ensure that the person with care and support needs will have confidence that arrangements to meet their needs will be in place on the day of their move. Local authorities are expected to achieve continuity of care by ensuring that the second authority has completed a needs assessment and developed a care and support plan for the individual prior to the day of the move. Where the second local authority has been unable to complete a needs assessment before the day of the move, for example due to the logistics of assessing a person a long distance away or because they want to assess the adult in their new home, it must continue to meet the needs and take into account outcomes identified in the adult’s current care and support plan until it has carried out its own assessment.

The key to ensuring that the adult’s care continues without interruption is through both local authorities working together and keeping the adult (and their carer, where relevant) at the centre of the process.

2. Making an informed decision to move to a different local authority

When thinking about the possibility of moving, an adult may want to find out information about the care and support available in one or more authorities. Local authorities may already make much of this information publicly available under its Care Act duties (see Information and Advice chapter), and they should provide any extra information requested by the adult and where relevant, their carer.

Local authorities can provide the adult and their carer with relevant information or advice to help inform their decision. When providing relevant information and advice, local authorities should guard against influence over the final decision. The authorities can, for example, provide advice on the implications for the individual’s care and support (and their carer’s support), but the final decision on whether or not to move is for the adult and, if relevant, the carer to make.

The prompt provision of this information will help the adult make an informed decision and assist the process if the adult decides that they want to move.

3. Confirming the intention to move

The continuity of care process starts when the second authority is notified of the adult’s intention to move. Local authorities may find out about the person’s intention to move from the individual directly or through someone acting on their behalf, who may contact either the first authority or the second authority to tell them of their intentions. If the person has approached the first authority and informed them of their intention to move, the first authority should make contact with the second authority to let them know that the person is planning on moving to their area.

When the person has confirmed their intention to move with the second authority, the authority must assure itself that the person’s intention is genuine. This is because the duties in the Care Act start from this point.

To assure itself that the intention is genuine, the second authority should:

  • establish and maintain contact with the person and their carer to keep abreast of their intentions to move;
  • continue to speak with the first authority to get their view on the person’s intentions;
  • ask if the person has any information or contacts that can help to establish their intention.

When the second authority is satisfied that the person’s intentions to move are genuine, it must provide the adult (and the carer if also intending to move), with accessible information about the care and support available in its area. This should include but is not limited to, details about:

  • the types of care and support available to people with similar needs, so the adult can know how they are likely to be affected by differences in the range of services available;
  • support for carers;
  • the local care market and organisations that could meet their needs;
  • the local authority’s charging policy, including any charges which the person may be expected to meet for particular services in that area.

Where the person moving currently receives a direct payment to meet some or all of their needs, the first authority should advise the person that they will need to consider how to meet any contractual arrangements put in place for the provision of their care and support. For instance, any contracts they may have with personal assistants who may not be moving with them.

4. Supporting people to be fully involved

The person may request assistance from either the first or second authority in helping them understand the implications of their move on their care and support, and the authority should ensure that they have access to all relevant information and advice. This should include consideration of the need for an independent advocate in helping the person to weigh up their options (see Independent Advocacy chapter).

There will be situations where the adult may lack capacity to make a decision about a move, but the family wish to move the adult closer to where they live (see Mental Capacity chapter).

In such situation the local authority must first carry out supported decision making, supporting the adult to be as involved as possible and must carry out a capacity assessment and where necessary then take ‘best interests’ decisions. The requirements of the Mental Capacity Act 2005 apply to all those who may lack capacity.

5. Preparing for the move

Once the second authority has assured itself that the adult’s (and where relevant the carer’s) intentions to move are genuine, it must inform the first authority. At this stage, both authorities should identify a named staff member to lead on the case and be the ongoing contact during the move. These contacts should make themselves known to the person and lead on the sharing of information and maintaining contact on progress towards arranging the care and support for the adult and support for the carer. These contacts should be jointly responsible for facilitating continuity of care within an acceptable timeframe, taking into consideration the circumstances behind the adult’s intention to move, such as a job opportunity.

The second authority must provide the adult and carer with any relevant information that it did not supply when the person was considering whether to move.

When the first authority has been notified by the second authority that it is satisfied that the person’s intention to move is genuine, the first authority must provide it with:

  • a copy of the person’s most recent care and support plan;
  • a copy of the most recent support plan where the person’s carer is moving with them;
  • any other information relating to the person or the carer (whether or not the carer has needs for support), that the second authority may request.

The information the second authority may request may include the most recent needs assessment if the person’s needs are not likely to change as a result of the move, the adult’s financial assessment, any safeguarding plan that have been completed for the individual, and, where a Deprivation of Liberty has been authorised for a person who is moving to a new local authority area, a new referral for a Deprivation of Liberty must be made to the new local authority.

6. People receiving Services under Children’s Legislation

The continuity of care provisions in the Care Act do not apply for people receiving services under children’s legislation. Where such a person has had a transition assessment (see Transition to Adult Care and Support chapter) but is moving area before the actual transition to adult care and support takes place, the first local authority should ensure that the second is provided with a copy of the assessment and any resulting transition plan. Similarly, where a child’s carer is having needs met by adult care and support in advance of the child turning 18 (following a transition assessment), the first local authority should ensure that the second is provided with a copy of the assessment and the carer’s support plan.

7. Assessment and Care and Support Planning

If the person has substantial difficulty and requires help to be fully involved in the assessment or care planning process and there is no other suitable person who can support them, they must be provided with an independent advocate. In this case the advocate should be provided by the second authority because it takes over the responsibility for carrying out the assessment and care planning with the individual (see Independent Advocacy chapter).

The second authority must contact the adult and the carer to carry out an assessment and to discuss how arrangements might be made. The second authority should also consider whether the person might be moving to be closer to a new carer and whether that new carer would benefit from an assessment.

Throughout the assessment process, the first authority must keep in contact with the second authority about progress being made towards arranging necessary care and support for the day of the move. The first authority must also keep the adult and the carer informed and involved of progress so that they have confidence in the process. This should include involving them in any relevant meetings about the move. Meetings may be held online / via video call where there are long distances between the local authorities involved. Having this three way contact will keep the individuals at the centre of the process, and help ensure that arrangements are in place on the day of the move.

All assessments, for adults with care and support needs and carers, must be carried out in line with the processes described in the Assessment chapter. The adult and the carer, and anyone else requested, must be involved in the respective assessments. The assessments must identify the person’s needs and the outcomes they want to achieve. These could be the same as the outcomes the first authority was meeting or they could have changed with the person’s circumstances.

The assessment must consider whether any preventative services or advice and information would help either person meet those outcomes. The assessments should also consider the individuals’ own strengths and capabilities and whether support might be available from family, friends or within the new community to achieve their outcomes. In carrying out the assessments, the second authority must take into account the previous care and support plan (or support plan) which has been provided by the first authority.

Following the assessment, and after determining whether the adult or carer has eligible needs, the second authority must involve the adult, the carer and any other individual the person requests, in the development of their care and support plan, or the carer’s support plan as relevant, and take all reasonable steps to agree the plan. The development of the care and support plan or carer’s support plan should include consideration of whether the person would like to receive a direct payment (see Care and Support Planning chapter).

The second authority should agree the adult’s care and support plan and carer’s support plan, including any personal budget, in advance of the move to ensure that arrangements are in place when the person moves into the new area. This should be shared with the individuals before the move so that they are clear how their needs will be met, and this must also set out any differences between the person’s original plan and their new care and support or support plan. Such differences could arise where the range of services in one local authority differs from the range of services in another. The second authority must also explain to the adult or carer where there are any differences in their needs.

The care and support plan should include arrangements for the entire day of the move. This should be agreed by the adult, the carers (existing and new as relevant) and both authorities. The first authority should remain responsible for meeting the care and support needs the person has in their original home and when moving. The second authority is responsible for providing care and support when the person and their carer move into the new area. The person moving is responsible for organising and paying for moving their belongings and furniture to their new home.

In considering the person’s personal budget, the second authority should take into consideration any differences between the costs of making arrangements in the second authority compared with the first authority and provide explanation for such a difference where relevant. Where there is a difference in the amount of the personal budget, this should be explained to the person. It should also look to ensure that the person’s direct payment is in place in a timely manner since, for example, the person moving may have a personal assistant that is also moving and will require payment.

8. Health and Social Care Needs

The adult and their carer may have health needs as well as care and support needs. Both local authorities should work with their local Integrated Care Boards (ICBs) to ensure that all of the adult’s and carer’s health and care needs are being dealt with in a joined-up way.

Who Pays? (NHS England) sets out the framework for establishing which NHS commissioner will be responsible for commissioning and paying for a person’s NHS care.

If the person also has health needs, the second local authority should carry out the assessment jointly with their local ICB. Alternatively, if the ICB agrees, the second authority can carry out the assessment on its behalf. Having a joint assessment ensures that all of the person’s needs are being assessed and the second authority can work together with the ICB to prepare a joint plan to meet the adult’s care and support and health needs. Where relevant, the local authority may use the cooperation procedures set out in the Care Act to require cooperation from the ICB, or other relevant partners, in supporting with the move (see Integration, Cooperation and Partnerships chapter).

Providing joint care and support and health plans will avoid duplication of processes and the need for multiple monitoring regimes. Information should be shared as quickly as possible with the minimum of bureaucracy. Local authorities should work alongside health and other professionals where plans are developed jointly to establish a ‘lead’ organisation which undertakes monitoring and assurance of the combined plan. Consideration should be given to whether a person should receive a personal budget and a personal health budget to support integration of services (see Personal Budgets chapter).

9. Equipment and Adaptations

Many people with care and support needs will also have equipment installed and adaptations made to their home. Where the first authority has provided equipment, it should move with the person to the second authority where this is the person’s preference and it is still required and doing so is the most cost effective solution. This should apply whatever the original cost of the item. In deciding whether the equipment should move with the person, the local authorities should discuss this with the individual and consider whether they still want it and whether it is suitable for their new home. Consideration will also have to be given to the contract for maintenance of the equipment and whether the equipment is due to be replaced.

As adaptations are fitted based on the person’s accommodation, it may be more practicable for the second authority to organise the installation of any adaptations. For example, walls need to be checked for the correct fixing of rails.

Where the person has a piece of equipment on long-term loan from the NHS, the second local authority should discuss this with the relevant NHS body. The parties are jointly responsible for ensuring that the person has adequate equipment when they move (see Integration, Cooperation and Partnerships chapter).

10. Copies of Documentation

The second authority must provide the adult and the carer and anyone else requested with a copy of their assessments. This must include a written explanation where it has assessed the needs as being different to those in the care and support plan or the carer’s support plan provided by the first authority. The second authority must also provide a written explanation if the adult’s or carer’s personal budget is different to that provided by the first authority.

11. Where the Second Authority has not carried out an Assessment before the Day of the Move

The second local authority is generally expected to have carried out their needs assessment of the persons moving prior to the day of the move. However, there may be occasions where the authority has not carried out the assessments or has completed the assessments but has not made arrangements to have support in place. This might happen where the second authority wants to assess the person in their new home and consider if their needs have changed, for example because they have started a new job or are now in education, or they have moved to be closer to family. The second authority must still have made contact with the adult and their carer in advance of the move.

Where the full assessment has not taken place prior to the move, the second authority must put in place arrangements that meet the adult’s or carer’s needs for care and support as identified by the first authority. These arrangements must be in place on the day of the move and continue until the second authority has carried out its own assessment and put in place a care and support plan which has been developed with the person.

The second authority must involve the adult and carer, and any relevant independent advocate, as well as any other individual that either person may request, when deciding how to meet the care and support needs in the interim period. The authority must take all reasonable steps to agree these temporary arrangements with the relevant person.

12. Matters the Second Local Authority must Consider when making Arrangements

The Care and Support (Continuity of Care) Regulations 2014 require the second authority to have regard to the following matters when meeting the person’s needs in advance of carrying out their own assessment:

12.1 Care and support plan

The adult’s care and support plan, and the carer’s support plan if the carer is also moving, which were provided by the first authority. The second authority should discuss with the adult and the carer how to meet their eligible needs and any other needs that the first authority was meeting that are not deemed as eligible but were included in either plan.

12.2 Outcomes

Whether the outcomes that the adult and the carer were achieving in day-to-day life in their first authority are the outcomes they want to achieve in the new authority, or whether their aims have changed because of the move.

12.3 Preferences and views

The preferences and views of the adult and the carer on how their needs are met during the interim period.

The second authority must also consider any significant difference to the person’s circumstances where that change may impact on the individual’s wellbeing, including:

12.4 Support from a carer

Whether the adult is currently receiving support from a carer and whether that carer is also moving with them. Where the carer is not also moving, the second authority must consider how to meet any needs previously met by the carer, even if the first authority was not providing any service in relation to those needs.

12.5 Suitability of accommodation

Where the new accommodation is significantly different from the original accommodation and this changes the response needed to meet the person’s needs. For example, the adult may move from a ground floor flat to a first floor flat and now need assistance to manage stairs.

Where the person has received equipment or had adaptations installed in their original home by the first authority, see Section 9, Equipment and Adaptations.

12.6 Access to services and facilities

Where the services and facilities in the new area are different, and in particular fewer than those in the originating area; for example access to food deliveries or other food outlets, access to public transport, or access to leisure or recreational facilities, the person’s workplace. A move from an urban to a rural environment could bring this about.

12.7 Access to other types of support

Where the person was receiving support from friends, neighbours or the wider community and this may not readily be available in their new area. For example, where the person makes use of universal services such as local authority day services, drop in support, or befriending schemes, and these are not available in the new area

If the person has substantial difficulty in being fully involved in the assessment, care planning or review process the second authority should consider whether the person needs an independent advocate or whether their original advocate is moving with them (see Independent Advocacy chapter).

The second authority should ascertain this information from relevant documentation sent to them or by talking to the individuals involved, and the first authority.

The adult or carer should not be on an interim care and support (or support) package for a prolonged period of time as a tailored care and support (or support) plan must be put in place. The second authority should carry out the assessment in a timely manner.

13. When the Adult does not move or the move is Delayed

There are a range of reasons why a person might not move on the designated day. This may be, for example, because they have become unwell or there is a delay in exchanging contracts as part of a house sale. Where there has been a delay because of unforeseen circumstances, both authorities should maintain contact with the person to ensure that arrangements are in place for the new date of the move.

If the person’s move is delayed and they remain resident in the area of the first authority, they will normally continue to be ordinarily resident in that area and so the first authority will remain responsible for meeting the person’s and the carer’s needs. Both local authorities may have incurred some expense in putting arrangements in place before the move was delayed. In such circumstances each of the authorities should consider agreeing to cutting their losses incurred in preparing continuity of care.

In circumstances where the second authority has not assessed the person prior to the move and is planning to meet needs based on their original care and support plan, but it transpires that the individual does not move to the second authority (and so the first authority remains responsible for providing care and support), the Care Act does provide for the second authority to be able to recover any costs it incurred from the first authority. In deciding whether to recover these costs the second authority may want to consider, for example, whether the first authority was aware that the person was not going to move and had not told the second authority or whether the first authority was not aware and was unable to advise the second authority not to make arrangements. The second authority should consider whether it would be reasonable to recover their costs depending on the circumstances of the case.

14. Disputes about Ordinary Residence and Continuity of Care

Where local authorities are in dispute over application of the continuity of care provisions, the authorities who are parties to the dispute must not allow their dispute to prevent, delay or adversely affect the meeting of the person’s needs. Where the authorities cannot resolve their differences, steps must be taken to ensure that the person is unaffected by the dispute and will continue to receive care for the needs that were identified by the first local authority (see Ordinary Residence chapter).

15. Making complaints

It is important that individuals have confidence in the assessment process and the wider care and support system. Therefore any individual should be able to make a complaint and challenge decisions where they believe a wrong decision has been made in their case. Anyone who is dissatisfied with a decision made by the local authority can make a complaint about that decision and have that complaint handled by the local authority (see Complaints chapter).

16. Further Reading

16.1 Relevant chapters

Preventing, Reducing or Delaying Needs

Assessment

Eligibility

16.2 Relevant information

Chapter 20, Continuity of Care, Care and Support Statutory Guidance (Department of Health and Social Care)

Quality Statement 3: Continuity of Care and Support (NICE)

Chapter 20, Continuity of Care, Care and Support Statutory Guidance (Department of Health and Social Care)

Quality Statement 3: Continuity of Care and Support (NICE)

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CQC Quality Statements

Theme 1 – Working with People: Supporting people to live healthier lives

We Statement

We support people to manage their health and wellbeing so they can maximise their independence, choice and control. We support them to live healthier lives and where possible, reduce future needs for care and support.

What people expect

I can get information and advice about my health, care and support and how I can be as well as possible – physically, mentally and emotionally. I am supported to plan ahead for important changes in my life that I can anticipate.

KNOWSLEY SPECIFIC INFORMATION

Paying for Care (Knowsley Council)

1. Introduction

Financial information and advice enables people to make well informed choices about how they pay for their care and support, both now and in the future. Providing good quality, impartial financial information and advice helps people to have a better idea of how their resources can be used to fund different types of care and support services.

This chapter should be read alongside Information and Advice, in particular the sections on accessibility and proportionality.

The term ‘independent financial information and advice’ refers to services which are independent of the local authority.

The term ‘regulated’ financial advice means advice from an organisation regulated by the Financial Conduct Authority (FCA). Organisations which are regulated can provide individual recommendations about specific financial products.

2. Providing Financial Advice and Information

The local authority must provide financial information and advice related to care and support. Where it is not appropriate for the local authority to provide this information directly, it must ensure people can easily access independent financial advice from other sources.

It is important to identify those (including families and carers) who could benefit from financial advice or information as early as possible. Work to raise awareness generally about how care and support is funded is also important.

Local authorities should:

  • consider a person’s need for financial information and advice when they make first contact with the authority and then throughout the assessment, care and support planning and review processes (see Assessment and Care and Support Planning chapters);
  • work with partners to get the right messages to people in the local area, including adults with care and support needs, their carers, families and friends;
  • work with partners to ensure they also communicate messages about the benefits of financial information and advice. This includes by services provided by the voluntary sector, hospitals, GPs, and solicitors who may be advising on wills or power of attorney.

When making plans about how to pay for care and support, the adult needs to have confidence about their options now, in the future and should their circumstances change. Adults will need to access financial information and advice at different times to enable them to make plans to pay for their care.

The local authority service should therefore cover immediate and long term financial planning, and provide access to the full range of financial information and advice – from basic budgeting tips to regulated advice. It is also importance that the staff providing financial information and recognise that some people are less able to protect themselves from theft, fraud and financial exploitation (see Adult Safeguarding).

The following aspects of financial information and advice should be available:

  • understanding care charges;
  • ways to pay;
  • money management;
  • making informed financial decisions;
  • facilitating access to independent financial information and advice.

Before providing financial information or advice to an adult, the local authority should establish if they have a deputy from the Court of Protection or a person with Lasting Power of Attorney acting on their behalf.

3. Understanding Care Charges

People should be provided with information to help them understand what they may have to pay for their care and support, when they will need to pay and how it relates to their individual circumstances. This should cover:

  • the charging framework for care and support
  • how contributions are calculated (from both assets and income) and the means tested support available;
  • top-ups (see Charging and Financial Assessment);
  • how care and support choices may affect costs.

In the case of top-ups, the local authority should make sure that someone is willing and able to pay them on behalf of the adult; financial information will be vital in helping with this.

4. Ways to Pay

People must be provided with information on the availability of different ways to pay for care including through;

  • income and assets (for example, pension or housing wealth);
  • a deferred payment agreement (see Deferred Payment Agreements);
  • financial products (for investing, borrowing or saving money – see the Moneyhelper  website for examples); or
  • a combination of these things.

Information provided should be relevant to the person’s individual circumstances and ensure access to an independent source of information or advice is provided where required. This will be particularly important for adults who are meeting the total cost of care and support themselves, or who may be considering taking out a deferred payment agreement or purchasing a financial product.

5. Money Management

Adults will need different levels of support managing their finances depending on their situation, their care and support needs (including mental capacity) and the amount they are expected to contribute.

Some people may only need basic information and support, to help them manage their finances in light of their changing circumstances. Topics may include welfare benefits, advice on good money management, help with basic budgeting and possibly on debt management. The local authority may be able to provide some of this information itself, for example on welfare benefits, but where it cannot, it should help people access it.

Other people may need more complex information and advice, if they have a number of different financial arrangements for example.

6. Making Informed Financial Decisions

The local authority must support people to make informed, affordable and sustainable financial decisions about their care at all stages of their life.

In many situations the role of the local authority will be to understand the person’s circumstances, explore their preferences and help them to access the information and advice that they need to make well informed decisions.

Where a person lacks mental capacity, the authority must establish whether they have a deputy of the Court of Protection or a person with Lasting Power of Attorney acting on their behalf. If they do not, the local authority’s client affairs team may need to be involved.

The local authority must consider a person’s specific circumstances when providing information about the different methods of paying for care and support that may be available to them.

Staff within the local authority and other frontline services should be able to direct people to the financial information and advice they need, and be able to explain the differences and potential benefits from seeking non-regulated or regulated financial advice.

7. Facilitating Access to Independent Financial Information and Advice

The local authority also has a key in role in helping people access independent financial information and advice. This should include both generic free and fee-based advice, as well as services providing regulated forms of financial advice. The local authority should make sure people are clear which independent services may charge for the information and advice they provide. It should also be able to describe the general benefits of independent information and advice and explain the reasons why it may be beneficial for a person to take independent financial advice based on what is known of an person’s individual’s circumstances.

Where a person may be considering taking regulated financial advice, the local authority does not have to make a direct referral to one individual independent financial adviser, but should direct people to a choice of advisers regulated by the Financial Conduct Authority.

8. Further Reading

8.1 Relevant chapters

Preventing, Reducing and Delaying Needs for Care and Support

Information and Advice

Charging and Financial Assessment

8.2 Relevant information

Chapter 3, Information and Advice, Care and Support Statutory Guidance (Department of Health and Social Care)

Financial Resources for People with Disabilities (Credit Action)

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CQC Quality Statements

Theme 3 – How the local authority ensures safety in the system: Safeguarding

We statement

We work with people to understand what being safe means to them as well as our partners on the best way to achieve this. We concentrate on improving people’s lives while protecting their right to live in safety, free from bullying harassment, abuse, discrimination, avoidable harm and neglect. We make sure we share concerns quickly and appropriately.

What people expect

I feel safe and supported to understand and manage any risks.

KNOWSLEY SPECIFIC INFORMATION 

Also see Knowsley Safeguarding Adults Procedures

September 2023: A link has been added in Section 11.2, Relevant information to Using the Inherent Jurisdiction in relation to Adults (39 Essex Chambers) and What Constitutes a Safeguarding Concern and how to Carry out an Enquiry (LGA).

1. Introduction

The Care Act 2014 provides the statutory framework for safeguarding adults, and contains the powers and duties that local authorities, Safeguarding Adults Boards and partner agencies have. It also provides guidance on how local authorities should work to prevent and tackle abuse, keep people safe and promote wellbeing. Chapter 14, Care and Support Statutory Guidance is the accompanying statutory guidance.

Social workers are the lead professionals in undertaking the statutory safeguarding duties, but it is vital they work with partners in other agencies to prevent, investigate and resolve safeguarding concerns.

2. The Safeguarding Duty

Under section 42 of the Care Act 2014, local authorities have legal adult safeguarding duties which are to:

  • make enquiries, or cause others to do so, when a concern has been raised about an adult in its area (whether or not they are ordinarily resident in it) to establish whether an action should be taken to prevent or stop abuse or neglect.

The safeguarding duties apply to an adult who:

  • has needs for care and support (whether or not the local authority is meeting any of those needs);
  • is experiencing, or at risk of, abuse or neglect;
  • as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.

The adult experiencing, or at risk of abuse or neglect will be referred to as ‘the adult’ throughout this chapter.

Safeguarding duties also apply to other organisations, not just the local authority, for example the NHS and the police.

Where someone is 18 or over but is still receiving children’s services and a safeguarding issue is raised, the matter should be dealt with through adult safeguarding arrangements. For example, this could occur when a young person with substantial and complex needs continues to be supported in a residential educational setting until the age of 25 (see Transition to Adult Care and Support chapter). Where appropriate, adult safeguarding services should involve the local authority children’s safeguarding colleagues as well as any relevant partners (for example the police or NHS) or other people relevant to the case. The level of needs is not relevant, and the young adult does not need to have eligible needs for care and support under the Care Act, or be receiving any particular service from the local authority, in order for the safeguarding duties to apply – so long as the conditions set out above are met.

Local authority statutory adult safeguarding duties apply equally to those adults with care and support needs:

  • regardless of whether those needs are being met;
  • regardless of whether the adult lacks mental capacity or not;
  • regardless of setting, other than prisons and approved premises where prison governors and HM Prison and Probation Service respectively have responsibility.

3. What is Adult Safeguarding?

Safeguarding means protecting an adult’s right to live in safety, free from abuse and neglect. It requires people and organisations to work together to prevent and stop both the risks and experience of abuse or neglect, while at the same time making sure that the adult’s wellbeing is promoted including, where appropriate, having regard to their views, wishes, feelings and beliefs in deciding on any action (see Making Safeguarding Personal chapter). This must recognise that adults are the experts in their own lives and that they sometimes have complex interpersonal relationships and may be ambivalent, unclear or unrealistic about their personal circumstances.

Organisations should always promote the adult’s wellbeing in their safeguarding arrangements. People have complex lives and being safe and well may mean different things to different people, as well as being just one aspect of what they want to achieve. Professionals should work with the adult to establish what being safe means to them and how that can be best achieved. Professionals and other staff should not be advocating ‘safety’ measures that do not take account of individual wellbeing (see Promoting Wellbeing chapter).

Safeguarding is not a substitute for:

  • providers’ responsibilities to provide safe and high quality care and support;
  • commissioners regularly assuring themselves of the safety and effectiveness of commissioned services;
  • the Care Quality Commission (CQC) ensuring that regulated providers comply with the fundamental standards of care or by taking enforcement action;
  • the core duties of the police to prevent and detect crime and protect life and property.

The Care Act requires that each local authority must:

  • set up a Safeguarding Adults Board (SAB) (see Safeguarding Adults Boards);
  • make enquiries, or cause others to do so, if it believes an adult is experiencing, or is at risk of, abuse or neglect (see Safeguarding Procedures in Individual Cases). An enquiry should establish whether any action needs to be taken to prevent or stop abuse or neglect and if so, by who;
  • arrange, where appropriate, for an independent advocate to represent and support an adult who is the subject of a safeguarding enquiry or Safeguarding Adult Review (SAR) where the adult has ‘substantial difficulty’ in being involved in the process and where there is no other suitable person to represent and support them (see Independent Advocacy);
  • cooperate with each of its relevant partners (see Integration, Cooperation and Partnerships) in order to protect the adult. In their turn each relevant partner must also cooperate with the local authority.

The aims of adult safeguarding are to:

  • prevent harm and reduce the risk of abuse or neglect to adults with care and support needs;
  • stop abuse or neglect wherever possible;
  • safeguard adults in a way that enhances individual choice and control as part of improving their quality of life, safety and wellbeing;
  • work alongside the adult to identify strengths based and outcomes focused solutions;
  • raise public awareness so that communities as a whole, alongside professionals, play their part in preventing, identifying and responding to abuse and neglect;
  • provide information and support in accessible ways to help people understand the different types of abuse, how to stay safe and what to do to raise a concern about the safety or wellbeing of an adult;
  • address what has caused the abuse or neglect.

In order to achieve these aims, it is necessary to:

  • ensure that everyone, both individuals and organisations, are clear about their roles and responsibilities;
  • create strong multi-agency partnerships that provide timely and effective prevention of and responses to abuse or neglect;
  • support the development of a positive learning environment across these partnerships and at all levels within them to help break down cultures that are risk averse and seek to scapegoat or blame practitioners;
  • enable access to mainstream community resources such as accessible leisure facilities, safe town centres and community groups that can reduce the social and physical isolation which in itself may increase the risk of abuse or neglect;
  • clarify how safeguarding concerns arising from poor quality and inadequacy of service provision, including patient safety in the health sector, should be responded to.

4. Key Principles underpinning all Adult Safeguarding Work

The following six principles apply to all sectors and settings including care and support services, further education colleges, commissioning, regulation and provision of health and care services, social work, healthcare, welfare benefits, housing, wider local authority functions and the criminal justice system. The principles should underpin all work with adults. The principles can also help SABs, and organisations more widely, by using them to examine and improve their local arrangements. They also have ‘I’ statements as examples.

4.1 The six principles

Empowerment

  • People are supported and encouraged to make their own decisions and give informed consent. People must always be treated with dignity and respect, and staff should work alongside them to ensure they receive quality, person centred care which ensures they are safe on their own terms.
  • ‘I am asked what I want as the outcomes from the safeguarding process and these directly inform what happens.’

Prevention

  • Prevention and early support are key to effective safeguarding.  The principle of prevention recognises the importance of taking action before harm occurs and seeks to put mechanisms in places so that they don’t reoccur.
  • ‘I receive clear and simple information about what abuse is, how to recognise the signs and what I can do to seek help.’

Proportionality

  • The means deciding the least intrusive response appropriate to the risk presented.
  • ‘I am sure that the professionals will work in my interest, as I see them and they will only get involved as much as needed.’

Protection

  • This involves organising and delivering support and representation for those in greatest need who may not be able to do it themselves.
  • ‘I get help and support to report abuse and neglect. I get help so that I am able to take part in the safeguarding process to the extent to which I want.’

Partnership

  • Effective safeguarding cannot be delivered in isolation, and should involve other partners and systems that interact with or impact on a person. Local solutions are best achieved through services working with their communities, professionals and services as a whole.
  • ‘I know that staff treat any personal and sensitive information in confidence, only sharing what is helpful and necessary. I am confident that professionals will work together and with me to get the best result for me.’

Accountability

  • This recognises the importance of being open, clear and honest in the delivery of safeguarding, and ensuring there are systems in place to hold practitioners and services to account.
  • ‘I understand the role of everyone involved in my life and so do they.’

See also Making Safeguarding Personal chapter

5. Types of Abuse and Neglect

This section considers the different types and patterns of abuse and neglect and the different circumstances in which they may take place. This is not intended to be an exhaustive list but an illustrative guide as to the sort of behaviour which could give rise to a safeguarding concern. See also Safeguarding Case Studies.

Local authorities should not limit their view of what constitutes abuse or neglect, as it can take many forms and the circumstances of the individual case should always be considered; although the criteria in Section 2, The Safeguarding Duty will need to be met before the issue is considered as a safeguarding concern.

5.1 Physical abuse

This includes:

  • assault;
  • hitting;
  • slapping;
  • pushing;
  • misuse of medication;
  • inappropriate use of restraint;
  • inappropriate use of physical sanctions.

5.2 Domestic abuse

Domestic abuse can take many different forms including psychological, physical, sexual, financial or emotional abuse. The Domestic Abuse Act 2021 defines domestic abuse as occurring between two people (aged 16 or over) who are ‘personally connected to each other’ and the behaviour is deemed ‘abusive’. Behaviour is ‘abusive’ when any of the following is identified:

  • physical or sexual abuse;
  • violent or threatening behaviour;
  • controlling or coercive behaviour;
  • economic abuse;
  • psychological, emotional or other abuse.

Domestic Abuse chapter

5.3 Sexual abuse

This includes:

  • rape;
  • indecent exposure;
  • sexual harassment;
  • inappropriate looking or touching;
  • sexual teasing or innuendo;
  • sexual photography;
  • subjection to pornography or witnessing sexual acts;
  • indecent exposure;
  • sexual assault;
  • sexual acts to which the adult has not consented or was pressured into consenting.

Sexual abuse may also take the form of sexual exploitation which can involve coercion and an exchange for basic necessities or something that the perpetrator seeks to gain from the victim.

5.4 Psychological abuse

This includes:

  • emotional abuse;
  • threats of harm or abandonment;
  • deprivation of contact;
  • humiliation;
  • blaming;
  • controlling;
  • intimidation;
  • coercion;
  • harassment;
  • verbal abuse;
  • cyber bullying;
  • isolation;
  • unreasonable and unjustified withdrawal of services or supportive networks.

5.5 Financial abuse

This includes:

  • theft;
  • fraud;
  • scams, including internet scamming;
  • coercion in relation to an adult’s financial affairs or arrangements, including in connection with wills, property, inheritance or financial transactions;
  • the misuse or misappropriation of property, possessions or benefits.

Potential indicators of a person being financially abused include:

  • change in living conditions;
  • lack of heating, clothing or food;
  • inability to pay bills / unexplained shortage of money;
  • unexplained withdrawals from an account;
  • unexplained loss / misplacement of financial documents;
  • the recent addition of authorised signers on a client or donor’s signature card;
  • sudden or unexpected changes in a will or other financial documents;
  • unexpected change of behaviour or loss of trust in professionals.

5.6 Modern slavery

See Modern Slavery chapter

This includes:

  • slavery;
  • human trafficking;
  • forced labour and domestic servitude.

Perpetrators of modern slavery coerce, deceive and force individuals into a cycle of abuse, servitude or inhumane treatment.

5.7 Discriminatory abuse

This includes forms of:

  • harassment;
  • slurs or similar treatment:
    • because of race;
    • gender and gender identity;
    • age;
    • disability;
    • sexual orientation;
    • religion.

See Equality, Diversity and Human Rights chapter and Discrimination: your rights (gov.uk) for further information.

5.8 Organisational abuse

Organisational abuse can take the form of suspected or reported neglect and poor practice within an institution or care setting, including the care provided in a person’s own home. This could be a one off incident or make take the form of ongoing, long term or recurring poor treatment of a person. Staff should consider where the abuse in the organisation is being perpetrated and whether it is being enabled by the structure, policies or processes in place.

See Ill Treatment and Wilful / Deliberate Neglect and Emerging Concerns Protocol chapters.

5.9 Neglect and acts of omission

Self-neglect is used to describe a range of behaviours which relate to neglect to care for one’s own personal hygiene, health or surroundings, The person themselves may not recognise the impact of their behaviour or may not use the same terminology to describe their situation. Ultimately, self-neglect becomes a cause for concern where there are serious risks identified to a person’s health, well-being or lifestyle. Self-neglect may take the form of neglect of nutrition or hydration, or behaviours such as hoarding.

Self-neglect will not always prompt a section 42 (safeguarding) enquiry.

An assessment should be made on a case by case basis, and practitioners should remain curious as to whether incidents are one off or multiple, affect the people around the adult and whether there are any patterns of harm that may be an indication of other types of abuse or poor mental health. A decision on whether a response is required under safeguarding or a decision to offer a care and support assessment of need / risk assessment will depend on the adult’s ability to protect themselves by controlling their own behaviour. There may come a point when they are no longer able to do this, without external support.

5.10 Self-neglect

See also Self-Neglect.

This covers a wide range of behaviour neglecting to care for one’s personal hygiene, health or surroundings and includes behaviour such as hoarding. Self-neglect may not prompt a section 42 enquiry.

An assessment should be made on a case by case basis. A decision on whether a response is required under safeguarding or a decision to offer a care and support assessment of need / risk assessment will depend on the adult’s ability to protect themselves by controlling their own behaviour. There may come a point when they are no longer able to do this, without external support.

6. Patterns of Abuse

See also Emerging Concerns Protocol chapter

Incidents of abuse may be one off or multiple, and affect one person or more. Professionals and others should look beyond single incidents or individuals to identify patterns of harm, just as the CQC, as the regulator of service quality, does when it looks at the quality of care in health and care services. Repeated instances of poor care may be an indication of more serious problems and of what we now describe as organisational abuse. In order to see these patterns it is important that information is recorded and appropriately shared.

Patterns of abuse vary and include:

  • serial abuse, in which the perpetrator seeks out and ‘grooms’ individuals. Sexual abuse sometimes falls into this pattern as do some forms of financial abuse;
  • long term abuse, in the context of an ongoing family relationship such as domestic violence between spouses or generations or persistent psychological abuse;
  • opportunistic abuse, such as theft occurring because money or jewellery has been left lying around

6.1 Appointees and deputies

Where the abuse is perpetrated by someone who has the authority to manage an adult’s money, the relevant body should be informed – for example, the Office of the Public Guardian for deputies or attorneys and Department for Work and Pensions (DWP) in relation to appointees.

If anyone has concerns that a DWP appointee is acting incorrectly, they should contact the DWP immediately. Note that the DWP can get things done more quickly if it also has a National Insurance number in addition to a name and address. However, people should not delay acting because they do not know an adult’s National Insurance number. The important thing is to alert DWP to concerns. If DWP knows that the person is also known to the local authority, then it should also inform the relevant authority.

7. Who Abuses and Neglects Adults?

Anyone can perpetrate abuse or neglect, including:

  • spouses / partners;
  • other family members;
  • carers;
  • neighbours;
  • friends;
  • acquaintances;
  • local residents;
  • people who deliberately exploit adults they perceive as vulnerable to abuse;
  • paid staff or professionals and volunteers;
  • strangers.

While a lot of attention is paid, for example, to targeted fraud or internet scams perpetrated by complete strangers, it is far more likely that the person responsible for abuse is known to the adult and is in a position of trust and power.

Abuse can happen anywhere: for example, in someone’s own home, in a public place, in hospital, in a care home or in college. It can take place when an adult lives alone or with others.

8. Signs of Abuse and Neglect

Workers across the local authority should be vigilant for adult safeguarding concerns.

Findings from safeguarding adult reviews have found that if professionals or other staff had been professionally curious and / or acted upon their concerns or sought more information, then death or serious harm might have been prevented.

Anyone can witness or become aware of information suggesting that abuse and neglect is occurring. The matter may, for example, be raised by a worried neighbour, a concerned bank cashier, a GP, a welfare benefits officer, a housing support worker or a nurse on a ward. Primary care staff may be particularly well placed to spot abuse and neglect, as in many cases they may be the only professionals with whom the adult has contact. The adult may say or do things that hint that all is not well. It may come in the form of a complaint, a call for a police response, an expression of concern, or come to light during a needs assessment.

Regardless of how the safeguarding concern is identified, everyone should know what to do, and where to go locally to get help and advice. It is vital that professionals, other staff and members of the public are vigilant on behalf of those unable to protect themselves. This will include:

  • knowing about different types of abuse and neglect and their signs;
  • supporting adults to keep safe;
  • knowing who to tell about suspected abuse or neglect;
  • supporting adults to think and weigh up the risks and benefits of different options when exercising choice and control.

Awareness campaigns for the general public and multi-agency training for all staff will contribute to achieving these objectives.

9. Reporting and Responding to Abuse and Neglect

See also Safeguarding Procedures for Responding in Individual Cases.

It is important to understand the circumstances of abuse, including:

  • the wider context such as whether others may be at risk of abuse;
  • whether there is any emerging pattern of abuse;
  • whether others have witnessed abuse;
  • the role of family members, carers and other staff.

The circumstances surrounding any actual or suspected case of abuse or neglect will inform the response. For example, abuse or neglect may be unintentional and may arise because a carer is struggling to care for another person. This makes the need to take action no less important, but in such circumstances, an appropriate response could be a support package for the carer and monitoring. However, the primary focus must still be how to safeguard the adult.

In other circumstances where the safeguarding concerns arise from abuse or neglect, it is necessary to immediately consider:

  • what steps are needed to protect the adult;
  • whether to refer the matter to the police to consider whether a criminal investigation would be required or is appropriate.

It should be remembered that abuse may consist of a single or repeated act. It may be physical, verbal or psychological, an act of neglect or an omission. Defining abuse can be complex but it can involve an intentional, reckless, deliberate or dishonest act by the perpetrator.

In any case where you encounter abuse and you are uncertain about your next steps, you should contact your manager, the safeguarding adults team or police for advice. See Knowsley Safeguarding Adults Board procedures.

The nature and timing of the intervention and who is best placed to lead will be, in part, determined by the circumstances. For example, where there is poor, neglectful care or practice, resulting in pressure sores, then an employer led enquiry may be more appropriate; along with clinical intervention to improve the care given immediately and a clinical audit of practice.

Commissioning or regulatory enforcement action may also be appropriate.

Early sharing of information is the key to providing an effective response where there are emerging concerns regarding information sharing and confidentiality (see Case Recording Standards and Information Sharing chapter). To ensure effective safeguarding arrangements:

  1. All organisations must have arrangements in place which set out clearly the processes and the principles for sharing information, with other professionals and the SAB; this could be via an Information Sharing Agreement to formalise the arrangements;
  2. No professional should assume that someone else will pass on information which they think may be critical to the safety and wellbeing of the adult. If a professional has concerns about the adult’s welfare and believes they are suffering or likely to suffer abuse or neglect, then they should share the information with the local authority and, or, the police if they believe or suspect that a crime has been committed.

Local authorities may choose to undertake safeguarding enquiries for people even when there is no section 42 enquiry duty, if the local authority believes it is proportionate to do so, and will enable the local authority to promote the person’s wellbeing and support a preventative agenda.

10. Carers and Safeguarding

Circumstances in which a carer (for example, a family member or friend) could be involved in a situation that may require a safeguarding response include:

  • a carer may witness or speak up about abuse or neglect;
  • a carer may experience intentional or unintentional harm from the adult they are trying to support or from professionals and organisations they are in contact with;
  • a carer may unintentionally or intentionally harm or neglect the adult they support on their own or with others.

Assessment of both the carer and the adult they care for must include consideration of the wellbeing of both people (see Promoting Wellbeing chapter). As such, a needs or carer’s assessment is an important opportunity to explore the individuals’ circumstances and consider whether it would be possible to provide information, or support that prevents abuse or neglect from occurring, for example, by providing training to the carer about the condition that the adult they care for has or to support them to care more safely. Where that is necessary the local authority should make arrangements for providing it.

If a carer speaks up about abuse or neglect, it is essential that they are listened to and that where appropriate a safeguarding enquiry is undertaken and other agencies are involved as appropriate.

If a carer experiences intentional or unintentional harm from the adult they are supporting, or if a carer unintentionally or intentionally harms or neglects the adult they support, consideration should be given to:

  • whether, as part of the assessment and support planning process for the carer and, or, the adult they care for, support can be provided that removes or mitigates the risk of abuse. For example, the provision of training or information or other support that minimises the stress experienced by the carer. In some circumstances the carer may need to have independent representation or advocacy; in others, a carer may benefit from having such support if they are under great stress or similar;
  • whether other agencies should be involved; in some circumstances where a criminal offence is suspected this will include alerting the police, or in others the primary healthcare services may need to be involved in monitoring.

Other key considerations in relation to carers should include:

  • involving carers in safeguarding enquiries relating to the adult they care for, as appropriate;
  • whether or not joint assessment is appropriate in each individual circumstance;
  • the risk factors that may increase the likelihood of abuse or neglect occurring;
  • whether a change in circumstance changes the risk of abuse or neglect occurring.

A change in circumstance should also trigger the review of the care and support plan and, or, support plan.

11. Further Reading

11.1 Relevant chapters

Safeguarding Procedures in Individual Cases

Information Sharing and Confidentiality

Safeguarding Adults Boards

Making Safeguarding Personal

11.2 Relevant information

Chapter 14, Safeguarding, Care and Support Statutory Guidance (Department of Health and Social Care)

Revisiting Safeguarding Practice (Department of Health and Social Care)  

Making Decisions on the Duty to carry out Safeguarding Adults Enquiries: Resources (Local Government Association)

Using the Inherent Jurisdiction in relation to Adults (39 Essex Chambers)

What Constitutes a Safeguarding Concern and how to Carry out an Enquiry (LGA)

ePractice

Now complete the 5 minute ePractice Quiz to test your understanding and provide evidence for CPD.

1. Safeguarding has no legal framework and may be dealt with in different ways by each local authority and care setting.(Required)
2. Ted is a 69 year old male caring for his wife June (72) who has dementia. Ted reports during a visit that he is finding caring for his wife very difficult as she hits out at him during personal care tasks and he has therefore at times been leaving her without attending to her needs. Ted refuses homecare and states that after speaking to you he feels better and more able to cope. Ted has mentioned that June has developed a sore that is weeping but he will not call the doctor as he ‘has it under control’ and ‘June is fearful of attending appointments’. Considering the above should you:(Required)
(tick as many as you feel apply)
3. When managing and considering issues in relation to safeguarding adults, there are six principles that should underpin all safeguarding practice. Please tick the six key principles from the list below:(Required)
4. Abuse and neglect can occur in many different ways and local authorities should not restrict their views of what may constitute abuse. Which of the following constitute abuse?
4a. Providing incorrect medication is a form of abuse - True or False?(Required)
4b. To force an individual to act against their own cultural views and beliefs is not a form of abuse - True or False?(Required)
4c. Doris is 67 and been diagnosed has Dementia. She is concerned that her daughter Pat is taking money from her. Doris has informed a number of people of this and appears consistent with her claims. Pat states that she has looked after her mother finances for the past five years, and due to her deteriorating mental state Doris is now making these claims which have upset Pat. Pat states that all her mother's care and support needs are met and there is no evidence to suggest otherwise. As Doris appears to be well looked after on a daily basis and there are no concerns regarding her care, this can be recorded with no further action - True or False?(Required)
5. Safeguarding adult concerns can be raised only by professionals.(Required)
6. Safeguarding adults is a highly confidential area. As safeguarding adults is a local authority duty, information should not be shared with anyone outside of local authority employment. Is this statement correct?(Required)

The information submitted above will not be given to any third parties. See our Terms & Conditions and Privacy Policy.
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CQC Quality Statements

Theme 3 – How the local authority ensures safety in the system: Safe systems, pathways and transitions

We statement

We work with people and our partners to establish and maintain safe systems of care, in which safety is managed, monitored and assured. We ensure continuity of care, including when people move between services.

What people expect

When I move between services, settings or areas, there is a plan for what happens next and who will do what, and all the practical arrangements are in place.

I feel safe and supported to understand and manage any risks.

Please note: This chapter gives a broad overview of the relevant legislation and guidance, however, this is an area which is likely to be impacted upon by ongoing case law, and legal advice should be sought as appropriate in relation to specific cases.

In addition, NRPF guidance states it will also be necessary to have policies in place that address NRPF service provision, including how discretionary powers are exercised towards particular groups, for example, pregnant women without children.

1. Definition and Eligibility

1.1 Definition of No Recourse to Public Funds

The term no recourse to public funds (NRPF) applies to people who are subject to immigration control and who do not have any entitlement to welfare benefits or public housing.

The definition of ‘subject to immigration control’ is set out in section 115 Immigration and Asylum Act 1999 (‘exclusion from benefits) and includes people who:

  • require leave to enter or remain in the UK but do not have it (for example an illegal entrant, Appeal Rights Exhausted Asylum seeker or a visa overstayer);
  • have leave to enter or remain in the UK which is subject to a condition that they do not have recourse to public funds (e.g. the spouse of a settled person, a Tier 4 student and their dependents or those with leave to remain as a visitor or under ‘family or private life rules’); or
  • have leave to enter or remain in the UK given as a result of a maintenance undertaking (e.g., they are adult dependant relatives of people with settled status).

The statement ‘no public funds’ will be written on the person’s immigration documentation, if they have immigration permission with NRPF.

People who have no recourse to public funds are not entitled to receive the following welfare benefits:

  • Attendance Allowance;
  • Carer’s Allowance;
  • Child Benefit;
  • Child Tax Credit;
  • Council Tax Reduction (sometimes called Council Tax Benefit);
  • Discretionary Welfare Payment;
  • Disability Living Allowance;
  • Housing Benefit;
  • Income Support;
  • Income based Jobseeker’s Allowance;
  • Income based Employment and Support Allowance;
  • Personal Independence Payment;
  • Severe Disablement Allowance;
  • Social Fund Payment: budgeting loan, sure start maternity grant, funeral payment, cold weather payment and winter fuel payment;
  • State Pension Credit;
  • Universal Credit;
  • Working Tax Credit.

They also have no entitlement to local authority housing or assistance from the local authority in relation to homelessness.

However, there are several exceptions to the rules regarding public funds, which are set out in the Home Office Guidance on Public Funds. This means that a person who has leave to remain with NRPF may be able to claim certain benefits without this affecting their immigration status when they:

  • are a national of a country that has a reciprocal arrangement with the UK;
    have an EEA national family member, including a British citizen;
  • make a joint claim for tax credits with a partner who has recourse to public funds; or
  • have indefinite leave to enter or remain as an adult dependent relative during the first five years they are in the UK (during which time they can claim non-means tested benefits).

People who are subject to immigration control may require the support of an interpreter in their contact with adult social care.

1.2 Recourse to Public Funds

People with the following types of immigration status will have recourse to (be able to access) public funds:

  • indefinite leave to enter or remain or no time limit (apart from an adult dependent relative);
  • right of abode;
  • exempt from immigration control;
  • refugee status;
  • humanitarian protection;
  • leave to remain granted under the family or private life rules where they are accepted by the Home Office as being destitute or at risk of imminent destitution;
  • discretionary leave to remain, for example:
    • leave granted to a person who has received a conclusive grounds decision that they are a victim of trafficking or modern day slavery;
    • destitution domestic violence concession;
    • unaccompanied asylum-seeking child leave.

See Section 1.1, Who has NPRF? Assessing and Supporting Adults who have no Recourse to Public Funds (England) for further information.

1.3 EEA nationals and other family members

The EEA is made up of all the European Union (EU) member states, plus Iceland, Lichtenstein and Norway. When the term ‘EEA national’ is used to refer to a person’s immigration position in the UK, this will also include Swiss nationals, whose rights are set out in bilateral treaties.

For a full list of EEA countries, please see Appendix A.

2. Assessment and Provision of Services

See also Assessing and Supporting Adults who have No Recourse to Public Funds (England): Practice Guidance for Local Authorities (NRPF Network).

2.1 Establishing the responsible authority

At the pre-assessment screening stage, in ascertaining the facts when an adult with NRPF requests assistance, the local authority should establish whether it is the responsible local authority, that is, whether the person is ordinarily resident within its area (see Ordinary Residence chapter).

2.2 Sharing information

The person should be informed as to how and why information about them may be shared with other agencies, including the Home Office, and confirm their understanding of this. Permission will be required from them in order to share or obtain information from legal representatives and voluntary sector agencies.

2.3 Check immigration status

An immigration check should be carried out to establish any eligibility for public funds under immigration legislation. The adult must be asked to provide evidence of their nationality and, if relevant, evidence of their immigration status in the UK. Immigration status checks can be obtained online from the Home Office or from NRPF Connect if your local authority is a member.

When a person requests care and support, the local authority will need to establish their nationality and immigration status for several purposes:

  1. to ascertain any possible entitlement to welfare benefits, housing assistance, employment or Home Office asylum support;
  2. to identify whether the person is in an excluded group and so can only be provided with care and support where this is necessary to prevent a breach of their human rights;
  3. where a person is in an excluded group, to find out whether any immigration claims are pending with the Home Office or appeal courts, or other legal barriers preventing them from leaving the UK or returning to their country of origin.

Evidence of nationality and immigration status may be established on documents provided by the person requesting support, but local authorities can also check immigration status directly with the Home Office or NRPF Connect.

2.4 How to check immigration status

Local authorities which have signed up to use the NRPF Connect database can obtain a status check by creating a new case on the system and a response will be provided in line with the service level agreement. Once a case has been created, the local authority can obtain further updates via NRPF Connect from the Home Office while the person remains in receipt of support and can update the Home Office about any change of circumstances. Please see NRPF Connect for more information.

Local authorities who are not using NRPF Connect can use the online service on gov.uk.

2.5 Duty to inform the Home Office

The local authority is required to inform the Home Office of:

  • any person they suspect or know to be unlawfully present in the UK; and
  • a refused asylum seeker who has not complied with removal directions.

This duty should be explained to adults who present to the local authority.

3. Legal Restrictions on Providing Assistance under the Care Act 2014

3.1 Adults subject to immigration control who are destitute but have no additional needs

The Care Act 2014 states a local authority may not meet the care and support needs of an adult or carer (nor prevent the needs for care and support of an adult) to whom the Immigration and Asylum Act 1999 applies and whose needs for care and support have arisen solely:

(a) because the adult is destitute,

(b) because of the physical effects, or anticipated physical effects, of being destitute.

A person is destitute if:

(a) they do not have adequate accommodation or any means of obtaining it (whether or not their other essential living needs are met); or

(b) they have adequate accommodation or the means of obtaining it, but cannot meet their other essential living needs.

3.2 Destitution Plus Test

The courts have held that a mental illness counts as a physical effect of destitution. However, where there is another possible cause of mental illness other than destitution, the local authority is not prevented from assisting that adult. Where the adult passes the ‘destitution plus test’ under the Care Act, this is interpreted to mean that there is a need for care and support which is material to such a degree that some other factor makes the adult’s situation more acute other than destitution or the effects or anticipated physical effects of destitution.

Case Law

In R (PB) v Haringey LBC [2006] EWHC 2255 (Admin) the court considered that if the applicant‘s depression arose from factors other than destitution, it could not say destitution and its physical effects were the sole cause. In R (Pajaziti) v Lewisham [2007] EWCA Civ 1351 LBC, the claimant’s mental health problems made the need for shelter and warmth more acute and it did not arise solely from destitution.

3.3 Adults who are not eligible for support and assistance

The Nationality, Immigration and Asylum Act 2002 (amended) states that the following five classes of person are ineligible for support and assistance under the Care Act 2014:

1) persons granted refugee status by another EEA State and their dependants;

2) EEA nationals and their dependants (but not UK nationals or children);

3) failed asylum seekers who fail to comply with removal directions, and their dependents;

4) persons unlawfully present in the UK. This includes:

  • people who have overstayed their visas;
  • illegal entrants;
  • refused asylum seekers who made their application for asylum in-country i.e. at the Home Office rather than at the port of entry.

5) failed asylum seekers with dependent children who have been certified by the Secretary of State as having failed to take steps to leave the UK voluntarily.

Whilst those coming within this category are not entitled to ‘support or assistance’ or duties towards carers of the Care Act, a local authority can provide information and advice (see Information and Advice chapter) or prevention (see Preventing, Reducing and Delaying Needs chapter).

The Care Act acts as a sorting mechanism, therefore, to distinguish between those subject to immigration control:

  • who might be accommodated and supported by the Home Office under the Immigration and Asylum Act 1999, for example asylum seekers or failed asylum seekers; or
  • who might potentially be accommodated by a local authority under the Care Act 2014.

A local authority has the power to provide care and support to people who met the criteria for such services under the Care Act which may include persons who are:

  • asylum seekers and other people not excluded by the Nationality, Immigration and Asylum Act 2002;
  • failed asylum seekers who are in breach of the immigration laws and other persons who are excluded by Nationality, Immigration and Asylum Act 2002 but it may be necessary to provide support to avoid a breach of a person’s rights under the ECHR

providing that: such persons need the sort of care that is normally provided in a home (whether ordinary or specialised) or that would be effectively useless if the applicant had no home and unless those needs ‘have arisen solely because:

(a) the adult is destitute; or

(b) of the physical effects, or anticipated physical effects, of being destitute.

4. Asylum Seekers

When an asylum seeker or refused asylum seeker requests care and support from social care, a local authority will be able to refer such a person to the Home Office for asylum support.

 4.1 Local authority assessments

When an asylum seeker presents with an appearance of need, they must be assessed in the usual way under the Care Act 2014 and provided with care and support if they have eligible needs. While an asylum seeker is waiting for a decision from the Home Office, or final determination following any appeals against a refusal, they are not subject to any exclusion from social care support, so eligibility for care and support will be established solely on the outcome of the needs assessment.

Where an asylum seeker (who has received the final determination of their asylum claim) presents with an appearance of need, they must be assessed in the usual way under the Care Act, but the provision of care and support may be subject to a human rights assessment depending on their immigration status and whether they are in a group excluded by Schedule 3 of the Nationality, Immigration and Asylum Act 2002.

Local authorities can only refer an asylum seeker to the Home Office for accommodation without undertaking a needs assessment when the person has presented without an appearance of need.

An asylum seeker who has presented with an appearance of need, and therefore requires a Care Act assessment, can only be referred to the Home Office for support when the relevant assessments have been completed and the local authority has determined that there is no duty to provide assistance.

If interim care and support, including housing, has been provided under section 19(3) pending the outcome of the assessment, then it is good practice for the local authority to assist the person to apply for asylum support. NRPF Connect can be used to communicate with the Home Office to ensure the application is processed as quickly as possible.

4.2 Section 95 Home Office support

A person with a pending asylum or Article 3 human rights application (or appeal) may apply for support from the Home Office under section 95 of the Immigration and Asylum Act 1999 when they are destitute (have no accommodation and / or cannot afford to meet their essential living needs).

They can also apply for emergency support from the Home Office under section 98 of the Immigration and Asylum Act 1999 and may receive support while the Home Office make a final decision on their application for section 95 asylum support.

Support will continue to be provided until the asylum claim is finally determined following any appeals the person has lodged. When the person is granted leave to remain or becomes ‘appeal rights exhausted’ following an unsuccessful claim, they will be issued with 21 days’ notice to leave their accommodation.

4.3 Home Office support for destitute asylum seekers

In certain circumstances, destitute refused asylum seekers may be provided with support from the Home Office under section 4 of the Immigration and Asylum Act 1999. They need to show that they:

  • are taking all reasonable steps to leave the UK;
  • are unable to leave the UK due to physical impediment;
  • have no safe route of return;
  • have been granted leave to appeal in an application for judicial review concerning their asylum claim; or
  • require support to avoid a breach of their human rights, for example they have made further submissions for a fresh asylum claim.

The support provided comprises accommodation and subsistence, which is intended to cover the costs of food, clothing and toiletries, through a card that can be used in shops but not to withdraw cash. Subsistence support cannot be provided independently of accommodation.

The following organisations provide information and asylum support:
Home Office
Migrant Help (assistance with applications)
Asylum Support Appeals Project (assistance when support is refused)

5. Modern Slavery

See also Modern Slavery chapter

Local authorities must consider and investigate when they suspect a person may be a victim of trafficking or modern slavery, or when a confirmed victim who has NRPF requests care and support or requires housing.

5.1 Safeguarding duty

Section 42 of the Care Act 2014 requires a local authority to undertake an enquiry to establish whether any action needs to be taken to prevent or stop abuse or neglect, where there is reasonable cause to suspect that an adult in its area who has needs for care and support is experiencing or is at risk of this and is unable to protect themselves from the abuse or neglect due to their needs.

The Care and Support Statutory Guidance (paragraph 14.17) specifies that abuse or neglect includes modern slavery, which encompasses: slavery; human trafficking; forced labour; domestic servitude; and where traffickers and slave masters use whatever means they have at their disposal to coerce, deceive and force individuals into a life of abuse, servitude and inhumane treatment.

A person’s nationality or immigration status should not prevent a local authority from following its safeguarding procedures in such circumstances. Schedule 3 of the Nationality, Immigration and Asylum Act 2002 does not prevent the local authority from undertaking an enquiry and taking any necessary action to stop abuse or neglect.

When a person is identified as being a potential victim of trafficking or modern slavery, the local authority must notify the National Referral Mechanism (NRM). Where the person has NRPF, the safeguarding plan will need to explore what housing options are available. This could include:

  • housing available through the NRM;
  • consideration within the needs assessment to establish whether accommodation can be provided under the Care Act 2014;
  • consideration as to whether section 1 of the Localism Act 2011 will require the local authority to provide housing to prevent a breach of human rights.

5.2 National Referral Mechanism support

Local authorities are under a duty under section 52 of the Modern Slavery Act 2015 to notify the Home Office about a potential victim of trafficking or modern slavery. A referral should be made to the NRM if the person’s consent is obtained.

If the person does not consent to a referral to the NRM, there is still a duty to notify the Home Office of potential victims using the online reporting form.

When a referral is made to the NRM, housing and subsistence support are provided by the Salvation Army and partner organisations for 45 days during the recovery and reflection period. This period provides time for the person to consider their options. They should receive a conclusive grounds decision about whether they are a victim of trafficking or not as soon as possible after 45 days. When they receive a positive grounds decision they are entitled to a further 14 days’ support, but extensions are considered on a discretionary basis by the Home Office. During this period, victims are expected to decide whether to return to their country of origin or apply for discretionary leave to remain, which if successful will allow the person to have recourse to public funds. If the person receives a negative conclusive grounds decision, then their support will only continue for two days.

5.3 Local authority support

A victim of trafficking or modern slavery may be eligible for accommodation under the Care Act 2014. Where this does not apply, the local authority would need to consider using section 1 of the Localism Act 2011 to provide support.

5.3.1 Care Act 2014

A potential or confirmed victim of trafficking may request a needs assessment to establish whether they require care and support, including accommodation. Therefore it is highly likely that such a person will present with an appearance of need, and so would need to be assessed under the Care Act 2014.

When a person is in a group excluded by Schedule 3 of the Nationality, Immigration and Asylum Act 2002, the local authority will also undertake a human rights assessment because care and support can only be provided where this is necessary to prevent a breach of a person’s human rights.

5.3.2 Localism Act 2011

In some cases, victims of trafficking or modern slavery will not qualify for care and support under the Care Act, so cannot be housed under the Act. When a person is not receiving support through the NRM and does not have any alternative means of accessing housing, the local authority must consider whether to use its power under section 1 of the Localism Act 2011 to provide accommodation.

Access to immigration and other specialist advice will be essential to help establish whether the person has an entitlement to benefits, for example, whether an EEA national has a right to reside or what options a non-EEA national without any immigration permission may have.

6. Human Rights Considerations

Whilst taking into account the legal restrictions outlined above, local authorities cannot carry out their duties in any way that breaches a person’s human rights. In all situations, the local authority should provide support where necessary to avoid a breach of a person’s human rights. The local authority should assess the person’s needs if there would be a breach of human rights if support is not provided.

In practice this means that local authorities must undertake a human rights assessment to consider whether, or to what extent, the circumstances are such that the bar on providing support or assistance under the Care Act should be lifted in order to avoid a breach of human rights.

If a case is open to the local authority, it can proceed directly to a human rights assessment. This will involve considering whether the adult is freely able to return to their country of origin without there being any breach of their human rights. If there are no legal or practical barriers to return, the local authority does not have a duty to support such an adult.

Legal and practical obstacles can include factors such as lack of travel documents or being temporarily unable to travel due to a medical condition. The local authority may therefore use the human rights assessment to consider how these obstacles might be overcome. Contacting relatives or finding out about services in the country of origin may help facilitate their return.

If there are obstacles in place that mean the person cannot leave or they are taking reasonable steps to plan for leaving the United Kingdom (UK), it may be necessary to continue to provide support to them for human rights reasons. If the person accepts the offer of assistance to return to their country of origin, support should normally continue until they leave.

Case Law

Local authorities must consider the case of Limbuela v Secretary of State [2005] UKHL 66, 3 WLR, in which it was determined that a decision which compels a person to sleep rough, or be without shelter, and without funds usually amounts to inhuman treatment and therefore engages Article 3 of the European Convention on Human Rights (ECHR). The House of Lords ruled that it was incompatible with Article 3 to refuse support to destitute asylum seekers. The Lords attempted to identify the point at which deprivation becomes so grave that the state is obliged to intervene and provide support. The state has a duty to provide support when:

….. it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by a denial of shelter, food or the most basic necessities of life.

Human rights issues centre on:

Article 3: prohibition on torture or inhuman or degrading treatment or punishment; and

Article 8: respect for private and family life.

The applicant may have alternative means of support in the UK that is family, friends or charity. If they have been in the UK for a long time, it is appropriate for the local authority to ask how long they have been supported and why it has now ceased.

Article 8 may mean a person’s right to family is not just limited to the applicant, for example there may be a relationship between a child and a non-custodial parent to consider. An Article 8 right is not absolute; but a breach is permissible if the grounds are subject to justification and a proportionality assessment.

Case Law

ZH (Tanzania) v Secretary of State of the Home Department [2011] UKSC4: if there are children involved the best interest of the individual child is paramount, but this is not determinative in a proportionality assessment.

Under the Children Act 2004 the local authority “must make arrangements for ensuring that – (a) their functions are discharged having regard to the need to safeguard and promote the welfare of children…”

In an email to the NRPF Network dated 29 July 2015, the Home Office and Department of Health confirmed that:

  • the Nationality, Immigration and Asylum Act 2002 prevents excluded groups from receiving ‘support or assistance’ under the Care Act (see 3.2 Adults Ineligible for Support and Assistance;
  • local authorities may undertake needs assessments for adults requiring care and support and carers;
  • local authorities may meet urgent needs for care and support whilst undertaking the relevant assessments;
  • there is no prohibition on a local authority undertaking its general duties with regards to providing information and advice or prevention.

7. Role of the Local Authority

7.1 To provide information

There is no prohibition on a local authority undertaking its general duties with regards to providing information and advice or prevention. Practitioners should help non-EEA nationals who are not seeking asylum to access immigration information to establish an appropriate pathway.

When a person is provided with care and support under the Care Act 2014 or is accommodated under the Localism Act 2011, the local authority will need to ensure that staff are equipped to assist the person to establish financial independence. There is a duty to promote wellbeing as well as reducing costs incurred from funding accommodation and financial support. A solution to a person’s destitution will often be achieved by obtaining a form of immigration status that will allow recourse to mainstream welfare benefits and housing services.

It is unlawful to provide immigration advice that relates to a person’s specific circumstances unless the adviser is registered with the Office of the Immigration Services Commissioner (OISC), or is exempt from registration, for example, a solicitor registered with the Solicitors Regulation Authority.

7.2 Pre-assessment screening: all cases

In all cases, in establishing the facts of the case when an adult with NRPF requests assistance, the local authority should:

  1. establish whether it is the responsible local authority, that is, whether the person is ordinarily resident within its area (see Ordinary Residence chapter);
  2. carry out an immigration check to establish any eligibility for public funds under immigration legislation. The adult must be asked to provide evidence of their nationality and, if relevant, evidence of their immigration status in the UK. Immigration checks can be obtained online from the Home Office or via NRPF Connect.;
  3. check whether there are any legal restrictions on providing assistance (see Section 3, Legal Restrictions on Providing Assistance) and
  4. establish whether it needs to meet urgent needs for care and support, including the provision of accommodation.

7.3 Adults subject to immigration control who are destitute, but have no additional needs

  • Do they fall within the statutory bar to the provision of care, support and prevention under the Care Act, because their needs arisen solely as a result of destitution and are they subject to immigration control? (see Section 3.1 Adults subject to immigration control who are destitute but have no additional needs above);
  • If so, a human rights assessment should be undertaken to assess whether, or to what extent, the bar on providing support or assistance should be lifted in order to avoid a breach of human rights (see Section 6, Human Rights considerations);
  • If not (that is, they have additional needs not arising solely from destitution), an assessment of needs should be undertaken in the usual way. These include situations where there is a possibility or evidence that a migrant has additional mental or physical health, learning disability or social care needs, or any safeguarding concerns (see Adult Safeguarding chapter).

7.4 Adults who are not eligible for support and assistance under the Nationality, Immigration and Asylum Act 2002

  • Do they fall within the statutory bar to the provision of care and support?
  • If so, there is no restriction on the local authority providing information and advice or prevention;
  • If so, a human rights assessment should be undertaken to assess whether, or to what extent, the bar on providing support or assistance should be lifted in order to avoid a breach of human rights( see Section 6, Human Rights Considerations);

7.5 Eligibility for services

A local authority may support an adult when these conditions apply. They:

  • are destitute according to the Immigration and Asylum Act 1999;
  • they have a dependent child;
  • they are not receiving, having applied for, or are potentially eligible for Home Office support for refused asylum seekers.

7.6 Eligibility for other services

A person with NRPF is prohibited from accessing specified welfare benefits, homelessness assistance and an allocation of social housing through the council register; they are not excluded from accessing other publicly funded services because of the NRPF condition.

However, there are often eligibility criteria attached to these services which relate to a person’s nationality or immigration status or are linked to receiving certain welfare benefits. It is therefore important to be aware of what services a person with NRPF may be entitled to access.

7.6.1 Housing

A person with NRPF can rent a property from a housing association if they apply directly to the housing association. They cannot rent a housing association property if this was applied for through the local authority housing allocations list, because this is a public fund for immigration purposes.

7.6.2 Education

When applying to undertake further education (aged 16 years +), a person with NRPF will only be able to undertake a course for free if they meet the funding criteria; immigration status and length of residence in the UK will be relevant factors.

7.6.3 NHS treatment

Services delivered by a GP, treatment for certain contagious diseases and accident and emergency treatment at a hospital, are free of charge to everyone regardless of their immigration status.

The main groups of people who will be charged for NHS treatment are:

  • visa overstayers;
  • illegal entrants;
  • refused asylum seekers (who are not receiving Home Office support or accommodation under the Care Act 2014).

7.7 Complying with the Care Act following a grant of leave to remain

Where social care is funding non-supported housing as part of a care and support plan for a person with NRPF, and a change in immigration status means that the person now has recourse to public funds, then assistance with approaching a housing authority and claiming benefits will need to be provided.

Section 23 of the Care Act 2014 does not allow the local authority to provide accommodation under the Care Act when it could otherwise be provided under the Housing Act 1996, so this transfer of responsibly must occur as soon as possible after the person becomes eligible for housing assistance. It is also important that any care package being provided is not interrupted if the person moves into different accommodation.

8. Refusing or Withdrawing Support

Care and support can be refused or withdrawn following a change of circumstances.

The Care Act 2014 requires a local authority to record the assessment decision in writing and to communicate the outcome to the person requesting support. This would apply when a person:

  • is assessed as having no eligible needs under the Care Act or, following a review, no longer has eligible care and support needs, and the local authority has also decided not to use its discretionary powers under section 19(1) of the Localism Act 2011 to provide housing;
  •  is in a group excluded by Schedule 3 of the Nationality, Immigration and Asylum Act 2002, and is to be refused support following a human rights assessment that concludes they can return to their country of origin to prevent a breach of human rights.

The assessment outcome should state why the person is not eligible, or no longer eligible for support.

When a person with NRPF has been provided with accommodation pending the outcome of an assessment and this is to be withdrawn, reasonable notice must be given to allow them to make alternative arrangements. What constitutes reasonable notice will depend on the person’s circumstances, with 21 days being a reasonable minimum period.

When a person has another support option available to them, for example, Home Office asylum support, then it would be good practice for the local authority to support their application for this and liaise with the Home Office to follow up the progress of the application through NRPF Connect.

8.1 Practice point on terminating support

Where support is to be terminated, this decision should be made by the service manager who should be informed by a current assessment record.

The social worker should inform the adult of this decision which should be confirmed in writing and should include the 28 day notice period from when support will terminate. It should also advise the person to seek legal advice if they disagree with the decision. The letter should be translated into the person’s first language as appropriate.

8.2 People excluded from support and returning to country of origin

This applies to people who are in a group excluded from support by Schedule 3 of the Nationality, Immigration and Asylum Act 2002. When the provision of care and support is being refused following a human rights assessment, which has determined that a person can return to their country of origin, then assistance with the return must be offered. This could be provided by the Home Office or local authority.

It will normally be appropriate for the local authority to provide accommodation and financial support whilst return is being arranged.

Where a person refuses an offer of assistance with return to their country of origin and remains in the UK when they have no current immigration permission and no legal barrier preventing them from returning, they would need to be advised of the risks and difficulties of living in the UK unlawfully:

  • the Home Office may undertake enforcement action to remove them from the UK;
  • they will not have permission to work (working when a person has no immigration permission to do so is a criminal offence);
  • private landlords will not be able to rent, sub- let or set up a paying lodging agreement with a person who has no immigration permission;
  • they will not be able to obtain many types of non-urgent NHS treatment unless they can provide full payment upfront, including hospital treatment, some mental health and possibly even drug and alcohol services;.
  • they will not be able to open a bank account, may have any accounts held closed or frozen, and will be breaking the law if they drive, whether they hold a licence or not.

Where the local authority has lawfully determined that a person can freely return to their country of origin, but the person refuses to do so, the courts have found that any hardship or degradation suffered will be a result of their decision to stay in the country and not as a result of any breach of human rights by the local authority.

8.3 Home Office funded return

The Home Office can fund and arrange travel for people who wish to return to their country of origin.

Any person who is living in the UK without immigration permission or has been refused permission to enter or stay in the UK can apply to undertake a voluntary return. This includes EEA Nationals who are not exercising a right to reside.

The Home Office will organise and fund the flight but will expect the person to arrange their own documentation. The Home Office can normally only provide additional support in obtaining documentation when a person has a vulnerability which means that it would be difficult for them to do this by themselves.

However, the person will not be able eligible for an assisted return if they:

  • were being investigated by the police or detained by the Home Office;
  • have been convicted of an immigration offence and given a deportation order;
  •  have already been given humanitarian protection, indefinite leave to remain or refugee status;
  • have been informed they are a ‘third country case’; or
  • are a European Economic Area (EEA) or Swiss national (unless they have been confirmed to be a victim of trafficking).

A person will usually only have one opportunity to apply for an assisted return.

Methods of contacting the Home Office:

  • people can apply online or contact the helpline: 0300 004 0202
  • email: voluntaryreturns@homeoffice.gov.uk
  • local Home Office Immigration Compliance and Enforcement Teams may facilitate voluntary returns involving EEA nationals.

8.4 Local authority funded return

Local authorities have the power to fund a return to the country of origin, although this may arise from different legislation depending on the person’s nationality or immigration status.

For EEA nationals and people with refugee status granted by another EEA state, the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 provide a power to:

  • purchase travel tickets to enable the person to return to their country of origin, and
  • provide time-bound interim accommodation pending the return to the country of origin, but not cash payments.

9. Good Practice Points

Local authorities need to be consistent, lawful and efficient in their response when assisting people with NRPF. The following good practice points have been established by the NPRF Network working with partner authorities and agencies.

  • ‘A specialist and targeted response is required to administer services effectively; ensure there is an identified lead practitioner or team to deal with NRPF cases.
  • Local authorities lacking a specialist NRPF worker should ensure that staff undertaking needs assessments for people with NRPF are adequately supported because any practitioner carrying out an assessment under the Care Act 2014 must have: ‘the skills, knowledge and competence to carry out the assessment in question and is appropriately trained’, and where knowledge is lacking, ‘must consult a person who has expertise in relation to the condition or other circumstances of the individual whose needs are being assessed in any case where it considers that the needs of the individual concerned require it to do so’.
  • Establishing internal protocols and having regard for the legislation and case law referenced in this guidance will help ensure that NRPF cases are identified at point of referral and dealt with consistently. This may include how discretionary powers are exercised towards particular groups, for example, pregnant women without children.
  • Provide an interpreter if this is required.
  • Obtain immigration status information and monitor caseloads and expenditure using NRPF Connect, which will also inform the Home Office of local authority involvement in case. This information contributes to the only national data source on NRPF service provision.
  • A local authority will usually establish whether it has a duty to provide support to an adult with NRPF by undertaking two steps:
  • Pre-assessment screening – establishing the facts of the case prior to assessment
  • Assessing need – determining eligibility for the provision of services’. (NRPF Network, Good Practice Points).

10. Further Reading

10.1 Relevant chapters

Interpreting, Signing and Communication Needs

Modern Slavery

10.2 Relevant information

Assessing and Supporting Adults who have No Recourse to Public Funds (England): Practice Guidance for Local Authorities (NRPF Network) 

Guidance for Adult Social Care (NRPF Network)

No Recourse to Public Funds Network

Appendix A: Full List of EEA Countries

  • Austria;
  • Belgium;
  • Bulgaria;
  • Croatia;
  • Cyprus;
  • Czech Republic;
  • Denmark;
  • Estonia;
  • Finland;
  • France;
  • Germany;
  • Greece;
  • Hungary;
  • Iceland (not EU member);
  • Ireland;
  • Italy;
  • Latvia;
  • Lichtenstein (not EU member);
  • Lithuania;
  • Luxembourg;
  • Malta;
  • Netherlands;
  • Norway (not EU member);
  • Poland;
  • Portugal;
  •  Romania;
  • Slovenia;
  • Spain;
  • Slovakia;
  • Sweden.
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CQC Quality Statements

Theme 1 – Working with People: Assessing needs

We statement

We maximise the effectiveness of people’s care and treatment by assessing and reviewing their health, care, wellbeing and communication needs with them.

What people expect

I have care and support that is coordinated, and everyone works well together and with me.

I have care and support that enables me to live as I want to, seeing me as a unique person with skills, strengths and goals.

KNOWSLEY INFORMATION

To make a referral for an advocate: Knowsley Advocacy Hub | n-compass

Email: referral@knowsleyadvocacyhub.org.uk

Phone: 0300 3030 624

See also Knowsley Advocacy Services

November 2023: A link has been added to Knowsley Advocacy Services information, as above.

1. Introduction

The Independent Mental Capacity Advocate (IMCA) was introduced by the Mental Capacity Act 2005 (MCA). The Act gives some people who lack capacity a right to receive support from an IMCA.

The local authority has a duty to make sure that IMCAs are available to represent people who lack capacity to make specific decisions, so staff will need to know when an IMCA must be involved (see Mental Capacity).

IMCAs are independent and generally work for advocacy providers who are not part of a local authority or the NHS.

2. Eligibility

2.1 Independent Mental Capacity Advocates

The majority of adults who access the IMCA service are people with learning disabilities, older people with dementia, people who have an acquired brain injury or people with mental health problems and / or are affected by drug or alcohol use.

IMCAs also act when people have a temporary lack of capacity because they are unconscious or barely conscious whether due to an accident, being under anaesthetic or as a result of other conditions.

A person’s capacity may vary over time or may depend on the type of decision that needs to be made.

Many adults have significant barriers to communication and are unable to instruct the advocate themselves. In addition, many people using the service will be unable to express a view about the proposed decision.

The IMCA service is provided for any person aged 16 years or older, who has no one able to support and represent them, and who lacks capacity to make a decision about either:

  • a long-term care move;
  • serious medical treatment;
  • safeguarding adult procedures; or
  • a care and support plan review.

Such a person will have a condition that is affecting their ability to make decisions.

IMCAs should be available to people who are in prison, in hostels or homeless and who lack capacity to make decisions about serious medical treatment or long term accommodation.

Many people who qualify for advocacy under the Care Act will also qualify for advocacy under the MCA. The same advocate can provide support as an advocate under the Care Act and under the MCA. This is to enable the person to receive seamless advocacy so that they don’t have to repeat their story. Whichever legislation the advocate is acting under, they should meet the appropriate requirements for an advocate under that legislation.

Both the Care Act and the MCA recognise the same areas of difficulty, and both require a person with these difficulties to be supported and represented, either by family or friends, or by an independent advocate or independent mental capacity advocate in order to communicate their views, wishes and feelings.

People who qualify for an IMCA in relation to the care planning and care review – as that planning may result in an eligible change of accommodation decision – in nearly all cases will also qualify for independent advocacy under the Care Act. The provisions of the Care Act are however wider and apply to care planning irrespective of whether it may result in a change of accommodation decision. People for whom there is a power to instruct an IMCA in relation to care review will (in nearly all cases) also qualify for independent advocacy under the Care Act. The Care Act however creates a duty rather than a power in relation to advocacy and care reviews (see Section 3, The Care Act and the Mental Capacity Act).

2.2 Independent Mental Health Advocates

Under the Mental Health Act 1983 (MHA) people, known as ‘qualifying patients’, are entitled to the help and support from an Independent Mental Health Advocate (IMHA).

Independent advocacy under the duty flowing from the Care Act is similar in many ways to independent advocacy under the MHA. Regulations have been designed to enable independent advocates to be able to carry out both roles. For both:

  • the advocate’s role is to support and represent people;
  • the advocate’s role is primarily to work with people who do not have anyone appropriate to support and represent them;
  • the advocates require a similar skill set;
  • regulations about the appointment and training of advocates are similar;
  • local authorities are under a duty to consider representations made by both independent advocates and IMHAs;
  • advocates will need to be well known and accessible;
  • advocates may challenge local authority decisions.

3. The Care Act and the Mental Capacity Act

3.1 Advocacy duties under the Care Act

The duty to provide independent advocacy is to provide support to:

  • people who have capacity but who have substantial difficulty in being involved in the care and support ‘processes’;
  • people in relation to their assessment and / or care and support planning regardless of whether a change of accommodation is being considered for the person;
  • people in relation to the review of a care and / or support plan;
  • people in relation to safeguarding processes (though IMCAs may be involved if the authority has exercised its discretionary power under the MCA and appointed an IMCA if protective measures are being proposed for a person who lacks capacity, at the time to make the relevant decisions or understand their consequences);
  • carers who have substantial difficulty in engaging, whether or not they have capacity;
  • people for whom there is someone who is appropriate to consult for the purpose of best interests decisions under the Mental Capacity Act, but who is not able and / or willing to facilitate the person’s involvement in the local authority process;
  • adults who are subject to a safeguarding enquiry or safeguarding adult review (see Safeguarding Procedures for Responding in Individual Cases and Section 5, Safeguarding Adults Reviews, Safeguarding Adults Boards.

3.2 Care Act and Mental Capacity Act

A person may be entitled to an advocate under the Care Act and then, as the process continues it may be identified that there is a duty to provide an advocate (IMCA) under the MCA. This will occur for example when during the process of assessment or care and support planning it is identified that a decision needs to be taken about the person’s long term accommodation. It would be unhelpful to the individual and to the local authority for a new advocate to be appointed at that stage.

It would be better that the advocate who is appointed in the first instance is qualified to act under the MCA (as IMCAs) and the Care Act and that the commissioning arrangements enable this to occur.

4. Role of the IMCA

The IMCA should go to meetings on the adult’s behalf and examine proposed decisions to make sure that:

  • all options have been considered;
  • where the adult’s own preferences and dislikes can be identified, these are taken into account;
  • no particular agendas are being pursued; and
  • the person’s civil, human and welfare rights are being respected.

The IMCA should not offer their own opinion or make the decision.

They should be experienced at working with people who have difficulties with communication. They should always attempt to get to know the adult’s preferred method of communication and spends time finding out if a person is able to express a view and how they communicate.

5. Safeguarding Adult Cases and Care and Support Plan Reviews

When people meet the IMCA criteria, the local authority and the NHS have a duty to instruct an IMCA for changes in accommodation and serious medical treatment decisions.

For safeguarding adult cases and care and support plan reviews, the local authority and the NHS have powers to appoint an IMCA where they consider the appointment would be of particular benefit to the person concerned.

Local authorities in England should have a policy on how IMCAs will be involved in care and support plan reviews and safeguarding adult procedures.

The local authority and the NHS have powers to instruct an IMCA to support and represent a person who lacks capacity where:

  • it is alleged the person is or has been abused or neglected by another person; or
  • it is alleged the person is abusing or has abused another person

A responsible body can instruct an IMCA to support and represent a person who lacks capacity when:

  • they have arranged accommodation for that person;
  • they aim to review the arrangements (as part of a care plan or otherwise); or
  • there are no family or friends whom it would be appropriate to consult.

6. Referrals and the Referral Process

Any adult who meets the following criteria must be referred to the IMCA service.

  • Is a decision being made about serious medical treatment or a change of accommodation; or a care and support plan review or safeguarding adult procedures?
  • Does the person lack capacity to make this particular decision?
  • Is the person over 16 years old?
  • Is there nobody (other than paid staff providing care or professionals) whom the decision maker considers willing and able to be consulted about the decision? (This does not apply to safeguarding adult cases.)

NHS bodies must instruct and take into account information from an IMCA where decisions are proposed about serious medical treatment, where the person lacks capacity to make the decision and there are no family or friends who are willing and able to support the person.

Serious medical treatment involves:

  • giving new treatment;
  • stopping treatment that has already started; or
  • withholding treatment that could be offered; and where there is either:
    1. a fine balance between the benefits and the burdens and risks of a single treatment;
    2. choice of treatments which are finely balanced; or
    3. what is proposed would be likely to involve serious consequences.

A person has a right to an IMCA if such treatment is being contemplated on their behalf and the person has been assessed as lacking capacity to make the decision for themselves at that time.

An IMCA cannot be involved if the proposed treatment is for a mental disorder and that treatment is authorised under Part IV of the Mental Health Act 1983. However, if a person is being treated under the MHA and the proposed treatment is for a physical illness, for example, cancer, an IMCA can be involved

Local authority and NHS staff must be able to identify when a person has a right to an IMCA and know how to instruct an IMCA.

Firstly, they should know which organisation has been commissioned to provide an IMCA service in the local authority. Local arrangements will be in place with each IMCA service provider regarding the ways in which referrals can be made. (To make a referral, please see Knowsley Advocacy Hub | n-compass)

At the time when the referral is made it must be evident that:

  • a person lacks the capacity to make the particular decision;
  • the decision is either serious medical treatment; a change in accommodation, a care review or an adult protection case; and
  • there is nobody who can appropriately support and represent the person (this does not apply to safeguarding adults).

7. When an IMCA cannot be involved

An IMCA cannot be involved if:

  • a person has capacity;
  • the proposed serious medical treatment is authorised under the MHA and is therefore for a mental disorder rather than a physical condition;
  • the proposed long term change in accommodation is a requirement under the MHA;
  • there is no identifiable decision about a long term change in accommodation or serious medical treatment or decisions relating to a care and support plan review or safeguarding adult procedures;
  • there is any other person (not in a paid capacity) who is willing and able to support and represent appropriately the person who lacks capacity (please note, a family member may not be suitable if, for example, they are implicated in a safeguarding incident); or
  • decisions are being made in relation to a person’s finances, unless there are safeguarding adult procedures in which an IMCA is involved.

The IMCA will stop being involved in a case once the decision has been finalised and they are aware that the proposed action has been carried out. They will not be able to provide ongoing advocacy support to the person. If it is felt that a person needs advocacy support after the IMCA has withdrawn, it may be necessary to make a referral to a local advocacy organisation (see Independent Advocacy).

8. Person requiring an IMCA is Receiving Funding from outside the Area where they are currently Living

Each IMCA service covers a local authority area and all eligible people in that area, whether on a permanent or temporary basis, must be referred to the local IMCA service. For example, if a person is living in a care home in Cambridgeshire but Essex County Council are providing the funding for that placement and there is a need to refer the person to IMCA, the Cambridgeshire IMCA service should provide the service.

9. Further Reading

9.1 Relevant chapters

Independent Advocacy

Mental Capacity

Assessment

Adult Safeguarding

Review of Care and Support Plans

9.2 Relevant information

Mental Capacity Act: Making Decisions, Office of the Public Guardian

Advocacy Services for Adults with Health and Social Care Needs (NICE)

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CQC Quality Statements

Theme 3 – How the local authority ensures safety in the system: Safe systems, pathways and transitions

We statement

We work with people and our partners to establish and maintain safe systems of care, in which safety is managed, monitored and assured. We ensure continuity of care, including when people move between services.

What people expect

When I move between services, settings or areas, there is a plan for what happens next and who will do what, and all the practical arrangements are in place.

I feel safe and supported to understand and manage any risks.

1. Introduction

Local authorities must keep a register of people who are severely sight impaired and sight impaired.

Registration is voluntary, however individuals should be encouraged to consent to being registered as it may assist them in accessing other concessions and benefits. People who agree to be registered may be entitled to some benefits, for example, an increase in personal tax allowance, a reduction in the cost of a TV licence, a free bus pass and parking concessions under the Blue Badge Scheme. It is important that strong links exist between local authorities, health services and voluntary organisations to identify those who may benefit from registration.

The data which registration provides the local authority are also of benefit in service planning for health and care and support. However, individuals’ access to care and support is not dependent upon registration, and those with eligible needs for care and support should continue to receive it regardless of whether they wish to be registered.

Local authorities should help health and social care organisations to work together to meet the needs of people who have sight loss, for example, ensuring that care and support services know what help somebody needs in their home when they leave hospital. Timely assessment and care and support planning that is integrated with health care and person centred care offer the potential to make improvements in experience and outcomes of people who are sight impaired, as well as improving system efficiency.

2. Registration

If the person consents to registration they will be included on the local authority’s register and be provided with a registration card. The register can also be used by the local authority to ensure that information about services is made accessible to that person for example to ask if support could be given to assist them to participate in electoral events.

3. The Certificate of Vision Impairment

The Certificate of Vision Impairment (CVI) formally certifies someone as being sight impaired or as severely sight impaired. Where the patient has given their consent, a copy of the CVI should be sent to the local authority by the hospital staff. However, people in receipt of a CVI should not be added to the local register until they have given their specific consent to the local authority for registration.

Local authorities may take the date of certification given on the CVI as the effective date of registration. If the adult has not given their consent for their name to be added to the register of sight impaired adults, however, they should still be offered a needs assessment.

The CVI is an important source of information for local authorities in relation to their registration duties. The local authority should satisfy themselves that the CVI is completed correctly and it contains valid signatures as required (currently the consultant ophthalmologist and the patient) when receiving a hard copy of the form. Electronic versions and paper copies of CVIs should be accepted for registration.

3.1 Certification

The CVI is issued by a consultant ophthalmologist to the patient certifying as sight impaired or severely sight impaired. The DH guidelines in the Certificate of Vision Impairment: Explanatory Notes for Consultant Ophthalmologists and Hospital Eye Clinic Staff states who should be certified as severely sight impaired and sight impaired.

Certification is not the final stage, but often it is the point when people begin to accept the severity of their sight loss and get access to practical and emotional support.

It is expected that NHS services will keep the completed certificate, signed by the consultant and the patient, for their records. Where the patient has given their consent, a copy of the certificate should be sent to the relevant local authority and the patient’s GP within five working days of its completion. The ‘Certificate of Vision Impairment Explanatory Notes for Consultant Ophthalmologists and Hospital Eye Clinic Staff provides information on this.

Local authorities should note that there will also be people who have a reduced / low vision but do not meet the criteria for certification who may need to be considered in service planning.

3.2 Transferring and retaining the CVI

The CVIs should be kept until the person moves to another area or has passed away. In the event of a person’s death, the local authority should keep the CVI for at least six years after the person’s death as it may be necessary for tax purposes to establish if a deceased person was registered with a local authority.

3.3 Making contact

Upon receipt of the CVI, the local authority should make contact with the person issued with the CVI within two weeks to arrange their inclusion on the local authority’s register (with the person’s informed consent) and offer individuals a registration card as identified on the CVI registration form. Where there is an appearance of need for care and support, local authorities must arrange an assessment of their needs in a timely manner.

To minimise unnecessary costs and maximise the ability of people who have sight impairment, they should have early access to information and advice in an accessible format so that they can adapt to their situation as quickly as possible and obtain any aids and support that will help them to manage their lives better.

4. Continuity of Care

A person may decide to move home and live in another local authority area (see Continuity of Care). The first local authority should ensure that the person’s care and support needs will continue to be met during their move. The process requires the original authority to provide the authority the person is moving to with relevant information to support the move such as a copy of the person’s care and support plan, their latest assessment, and any other documentation the second authority requests. This should include a copy of their CVI. The second authority should register the person with the person’s consent on their register, and the former authority should remove that person’s name to avoid duplication.

The first authority will be able to invoice the second authority for the cost of care, from the date it is agreed between the respective local authorities that the adult acquired a place of ordinary residence in the second area (see Ordinary Residence).

5. Care Planning

Providing excellent services for blind and partially sighted people – A guide for local authorities, published by Royal National Institute for Blind People (RNIB) and Action for Blind People, is a good practice guide that helps inform local authorities’ understanding of the extent and impact of sight impairment, the main causes and risk factors and the effects on people’s lives.

Having carried out a needs assessment, the local authority must prepare a care and support plan for everyone with eligible needs or other needs which it is going to meet. Where someone has sight loss, this should be recorded in the care and support plan (see Care and Support Planning chapter).

Local authorities should consider securing specialist qualified rehabilitation and assessment provision (whether in-house, or contracted through a third party), to ensure that the needs of people with sight loss are correctly identified and their independence maximised. Certain aspects of independence training with severely sight impaired and sight impaired people require careful risk management and should only be undertaken by professionals with relevant experience and training. This type of rehabilitation should be provided to the person for a period appropriate to meet their needs. This will help the person to gain new skills, for example, when training to use a white cane. See Care Act 2014 and Sight Loss (ADASS).

This makes it clear that rehabilitation for sight impaired people is a specific form of reablement and is not limited to the usual six week period for rehabilitation as this could take longer. There are some characteristics which define rehabilitation as being distinct from other forms of reablement. It is therefore not appropriate to take a one-size-fits-all approach, and the local authority needs to ensure that individual needs are met appropriately.

6. Other Registers

Local authorities may also establish and maintain a register of people living in their area who have a disability (a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out normal day to day activities) or who need care and support or are likely to do so in the future. (This is a power to maintain a register, as opposed to a duty to do so as per the sight register.)

Inclusion on registers is voluntary and with the individual’s informed consent. However local authorities should encourage individual’s consent to inclusion on the register as such registers may support the establishment of an accurate and useful local record of people whose needs may change over time, for example:

  • someone with a progressive long-term condition whose needs may increase over time;
  • when the person on whom they are mainly dependent for their care has stopped providing care;
  • those who are ordinarily resident but may be receiving temporary care and support out of area, or in-patient treatment in health services, but who are likely to require care and support on their discharge or return.

Local authorities may wish to link the information collected to the Joint Strategic Needs Assessments (JSNAs) as well as the Joint Health and Wellbeing Strategies. They may also, as part of local JSNA and Health and Wellbeing Strategy development, want to look at this information alongside complementary information from other partners, for example, information drawn appropriately from registers of people with learning disabilities or particular health conditions which are held by GPs, in order to produce a comprehensive and accurate shared local picture.

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Employing a skilled and motivated workforce is vital to ensuring good quality services are provided to adults with care and support needs, and their carers. It will also assist to:

  • improve service satisfaction levels of adults and their carers;
  • enhance staff job satisfaction;
  • embed standards and safe working practices;
  • reduce the number of complaints from adults and carers;
  • reduce the number of staff disciplinary hearings and dismissals;
  • improve staff retention levels.

As part of a wider competency framework which also includes staff supervision and appraisal, workforce development links staff learning and development to other activities, such as strategic planning, workforce planning, performance management and career development.

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CQC Quality Statements

Theme 3 – How the local authority ensures safety in the system: Safe systems, pathways and transitions

We statement

We work with people and our partners to establish and maintain safe systems of care, in which safety is managed, monitored and assured. We ensure continuity of care, including when people move between services.

What people expect

When I move between services, settings or areas, there is a plan for what happens next and who will do what, and all the practical arrangements are in place.

I feel safe and supported to understand and manage any risks.

September 2023: A link has been added in Section 5.1, Relevant information to DBS Checks for Adult Social Care Roles published by the Disclosure and Barring Service.

1. Introduction

Employers need to ensure, to the best of their ability, that the people they employ – as paid staff, volunteers or contractors – are committed to providing good quality care and support to adults who receive care and support services from them, their carers or other family members including children.

Undertaking thorough criminal records checks is part of a number of safer recruitment measures, which are designed to try to prevent unsuitable people being employed to work with vulnerable people. This is in addition to thorough recruitment processes, training, staff supervision and appraisal programmes which are all key to ensuring good working practices.

2. Disclosure and Barring Service

The Disclosure and Barring Service (DBS) helps employers make safer recruitment decisions. It is responsible for:

  • processing requests from organisations for criminal records checks (known as DBS checks) on individuals;
  • deciding whether it is right that a person is put on, or removed, from a barred list;
  • placing or removing people from the DBS children’s barred list and adults’ barred list.

3. Barred Lists and Duty to Refer

There are two barred lists maintained by the Disclosure and Barring Service in relation to those who are:

  • barred from working with children;
  • barred with working with adults.

A person who is barred from working with children or adults will be committing a criminal offence if they work, volunteer or try to work or volunteer with the group from which they have been barred.

An organisation which knows they are employing someone who is barred to work with that particular group will also be committing a criminal offence.

Legally an organisation must inform the Disclosure and Barring Service if a member of staff or a volunteer is dismissed (or where they would have been dismissed if they had not resigned or otherwise left) because they pose a risk of harm or have caused harm to a child or adult.

See the DBS Referral Flowchart.

4. DBS Checks

This is the Find out which DBS Check is Right for your Employee tool

Through undertaking DBS checks, the DBS helps organisations identify people who may be unsuitable for the job.

4.1 Types of Disclosures

There are different types of disclosure:

  • a basic check, which shows unspent convictions and conditional cautions;
  • a standard check, which shows spent and unspent convictions, cautions, reprimands and final warnings;
  • an enhanced check, which shows the same as a standard check plus any information held by local police that’s considered relevant to the role;
  • an enhanced check with a check of the barred lists, which shows the same as an enhanced check plus whether the applicant is on the adults’ barred list, children’s barred list or both

4.2 Adult first check

See Types of DBS Checks and How to Apply (DBS)

DBS adult first is a service available to organisations who can request a check of the DBS adults’ barred list. Depending on the result, a person can be permitted to start work, under supervision, with adults before a DBS certificate has been obtained.

There are strict criteria:

  • the role must require a criminal record check by law;
  • it must be eligible for access to the DBS adults’ barred list;
  • the organisation must have requested a check of the DBS adults’ barred list on the DBS application form.

The DBS’ reply to an adult first check request will state either:

  • option 1: ‘Registered Body must wait for the DBS certificate’; or
  • option 2: ‘no match exists for this person on the current adults’ barred list’

It will also state that it is only the first part of the criminal record check application process and that further information will follow.

If the adult first check indicates that the Registered Body must wait for the DBS certificate, it may indicate there is a match on the DBS adults’ barred list. However, further investigation is required to confirm this and the organisation should wait to receive the certificate.

4.3 Update Service

The DBS also provides an online Update Service, to which staff or volunteers can subscribe and renew annually for a small fee (free for volunteers). This helps them keep their DBS certificate up to date, so it can be taken with them from one job to another, as long as they remain within the same workforce (adults, for example) unless:

  • an employer asks them to get a new certificate;
  • they need a certificate for a different type of ‘workforce’ (for example, they have an ‘adult workforce’ certificate and need a ‘child workforce’ certificate);
  • they need a different level certificate (for example, they have a standard DBS certificate and need an enhanced one).

Employers can do immediate online checks of a person’s status, as long as they have registered with the Update Service. The Update Service is for standard and enhanced DBS checks only (see Section 4.1 Types of Disclosures above).

A new DBS check will only be required if the Update Service check indicates there has been a change in the person’s status, due to new information added.

4.4 Cautions and convictions

Before an organisation asks a person to apply for a standard or enhanced check through the DBS, it is legally responsible for making sure that the job role is eligible (see Eligibility, DBS).

Please note certain old and minor cautions and convictions are no longer subject to disclosure; see Disclosure and Barring Service Filtering Guide.

4. Regulated Activity with Adults

See Regulated activity: Adults (Department of Health and Social Care)

Regulated activity is work which involves close and unsupervised contact with adults, and which cannot be undertaken by a person who is on the Disclosure and Barring Service’s Barred List for adults.

There are six categories of people who will fall within the definition of regulated activity (including anyone who provides day to day management or supervision of those people):

  1. Providing health care;
  2. Providing personal care (for example providing / training / instructing / or offering advice or guidance on physical assistance with eating or drinking, going to the toilet, washing or bathing, dressing, oral care or care of the skin, hair or nails because of an adult’s age, illness or disability; or prompting and supervising an adult to undertake such activities where necessary because of their age, illness or disability);
  3. Providing social work;
  4. Providing assistance with cash, bills and / or shopping;
  5. Providing assistance in the conduct of a person’s own affairs, for example by virtue of an enduring power of attorney;
  6. Conveying/transporting an adult (because of their age, illness or disability) either to or from their place of residence and a place where they have received, or will be receiving, health care, personal care or social care; or between places where they have received or will be receiving health care, personal care or social care. This will not include family and friends or taxi drivers.

There is a duty on a ‘regulated activity provider’ to find out whether a person is barred before allowing them to carry out regulated activity tasks in their work.

It is a criminal offence for a person on one of the barred lists to carry out regulated activity tasks, or for an employer/voluntary organisation knowingly to employ a barred person in a regulated activity role.

5. Further Reading

5.1 Relevant information

Disclosure and Barring Service

Criminal Record Support Service (NACRO)

Check Someone’s Criminal Record as an Employer (UK Government)

DBS Checks for Adult Social Care Roles (Disclosure and Barring Service)

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CQC Quality Statement

Theme 4 – Leadership: Learning, improvement and innovation 

We statement

We focus on continuous learning, innovation and improvement across our organisation and the local system. We encourage creative ways of delivering equality of experience, outcome and quality of life for people. We actively contribute to safe, effective practice and research.

1. Introduction

This chapter provides a summary of the ways in which local and national performance indicators and outcome information can be used to measure how well care and support services are achieving the outcomes which matter most to people. It provides information about the national Adult Social Care Outcome Framework (ASCOF) as well as locally agreed performance information.

A summary of the ASCOF is published annually by NHS England. Health and Wellbeing Boards can use ASCOF data, alongside other local information sources to inform their Joint Strategic Needs Assessment and the development of Joint Local Health and Wellbeing Strategies (see Joint Strategic Needs Assessments and Joint Local Health and Wellbeing Strategies).

2. Adult Social Care Outcomes Framework

ASCOF is used both locally, regionally and nationally to measure progress against key priorities and strengthen transparency and accountability. It measures how well care and support services achieve the outcomes that matter most to people, and provides comparable information on the outcomes and experiences of people who use adult social care, and carers.

The ASCOF sets outcomes-based priorities developed from six key objectives for people who are using care and support, unpaid carers and professionals who provide care and support:

  1. Quality of life: people’s quality of life is maximised by the support and services which they access, given their needs and aspirations, while ensuring that public resources are allocated efficiently.
  2. Independence: people are enabled by adult social care to maintain their independence and, where appropriate, regain it.
  3. Empowerment – information and advice: individuals, their families and unpaid carers are empowered by access to good quality information and advice to have choice and control over the care they access.
  4. Safety: people have access to care and support that is safe and which is appropriate to their needs.
  5. Social connections: people are enabled by adult social care to maintain and, where appropriate, regain their connections to their own home, family and community.
  6. Continuity and quality of care: people receive quality care, underpinned by a sustainable and high-quality care market and an adequate supply of appropriately qualified and trained staff

The Adult Social Care Outcomes Framework: Handbook of Definitions states:

The key roles of ASCOF are:

  • Locally, the ASCOF provides councils with robust information that enables them to monitor the success of local interventions in improving outcomes that matter to most people, and to identify their priorities for making improvements. Local Authorities can also use ASCOF to inform outcome-based commissioning models.

  • Locally, it is also a useful resource for Health and Wellbeing Boards who can use the information to inform their strategic planning and leadership role for local commissioning.

  • Locally, the ASCOF also strengthens accountability to local people. By fostering greater transparency on the outcomes delivered by care and support services, it enables local people to hold their council to account for the quality of the services that they provide, commission or arrange. Local authorities are also using the ASCOF to develop and publish local accounts to communicate directly with local communities on the outcomes that are being achieved, and their priorities for developing local services.

  • Regionally, the data supports sector led improvement; bringing councils together to understand and benchmark their performance. This, in turn, stimulates discussions between councils on priorities for improvement, and promotes the sharing of learning and best practice.

  • At the national level, the ASCOF demonstrates the performance of the adult social care system as a whole, and its success in delivering high-quality, personalised care and support and achieving good outcomes. Meanwhile, the framework supports ministers in discharging their accountability to the public and Parliament for the adult social care system, enabling oversight of care and support services and continues to inform, and support, national policy development.’ (Department of Health and Social Care).

The ASCOF draws together data from a range of sources, including data collected by local authorities (for example client level data collection, the Adult Social Care Survey (ASCS) , Survey of Carers in England (SACE), the adult social care workforce data set and the safeguarding adults data collection) and nationally collected data from the Office of National Statistics and Care Quality Commission (CQC).

Data collected under the ASCOF is not used by the government to manage the performance of local authorities, rather it should be used to inform and support sector led improvement and strengthen local transparency and accountability.

3. Further Reading

3.1 Relevant information

Adult Social Care Outcomes Framework – Handbook of Definitions (DHSC) 

Measures from the Adult Social Care Outcomes Framework (NHS England)

Social Care User Surveys (ASCS and SACE Data Collections, NHS Digital)  

Care Data Matters: A Roadmap for Better Data for Adult Social Care (DHSC) 

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1. General Principles

The Care and Support Statutory Guidance (Department of Health and Social Care) details a number of key principles and standards which the local authority must have regard to when carrying out its activities or functions, as specified below.

  • Promoting Wellbeing. This means actively seeking improvements in particular aspects of wellbeing at any stage of the process from the provision of information and advice to reviewing a care and support plan, including:
    • personal dignity;
    • physical and mental health and emotional wellbeing;
    • protection from abuse and neglect; control by the individual over their day to day life; participation in work, education and training;
    • social and economic wellbeing;
    • domestic, family and personal;
    • suitability of living accommodation;
    • the individual’s contribution to society.
  • The importance of beginning with the assumption that the individual is best placed to judge the individual’s wellbeing. Building on the principles of the Mental Capacity Act 2005, the local authority should assume that the person knows best about their own outcomes, goals and wellbeing. The local authority should not make assumptions as to what matters most to a person.
  • The individual’s views, wishes, feelings and beliefs. Considering the person’s views and wishes is critical to a person centred assessment and care and support system. The local authority should not ignore or downplay the importance of a person’s own opinions in relation to their life and their care. Where particular views, feelings or beliefs (including religious beliefs) impact on the choices that a person may wish to make about their care, these should be taken into account. This is especially important where a person has expressed views in the past, but no longer has capacity to make decisions themselves.
  • The importance of preventing or delaying the development of needs for care and support and the importance of reducing needs that already exist. At every interaction with a person, the local authority should consider whether or how the person’s needs could be reduced or other needs could be delayed from arising. Effective interventions at the right time can stop needs from escalating, and help people maintain their independence for longer (see Preventing, Reducing or Delaying Needs chapter).
  • The need to ensure that decisions are made having regard to all the individual’s circumstances (and are not based only on their age or appearance, any condition they have, or any aspect of their behaviour which might lead others to make unjustified assumptions about their wellbeing). The local authority should not make judgements based on preconceptions about the person’s circumstances, but should in every case work to understand their individual needs and goals (see Assessment).
  • The importance of the individual participating as fully as possible in decisions about them and being provided with the information and support necessary to enable the individual to participate. Care and support should be personal, and the local authority should not make decisions from which the person is excluded (see Assessment).
  • The importance of achieving a balance between the individual’s wellbeing and that of any friends or relatives who are involved in caring for the individual. People should be considered in the context of their families and support networks, not just as isolated individuals with needs. The local authority should take into account the impact of an individual’s need on those who support them, and take steps to help others access information or support (see Assessment chapter).
  • The need to protect people from abuse and neglect. In any activity which the local authority undertakes, it should consider how to ensure that the person is and remains protected from abuse or neglect. This is not confined only to safeguarding issues, but should be a general principle applied in every case (see Adult Safeguarding chapter).
  • The need to ensure that any restriction on the individual’s rights or freedom of action that is involved in the exercise of the function is kept to the minimum necessary for achieving the purpose for which the function is being exercised. Where the local authority has to take actions which restrict rights or freedoms, they should ensure that the course followed is the least restrictive necessary (see Deprivation of Liberty Safeguards chapter).

These principles must be considered in relation to every individual.  This will ensure an approach that looks at a person’s life holistically, considering their needs in the context of their skills, ambitions, and priorities – as well as the other people in their life and how they can support the person in meeting the outcomes they want to achieve. The focus should be on supporting people to live as independently as possible for as long as possible.

These principles will vary in their relevance and application to individuals. For some people, spiritual or religious beliefs will be of great significance, and should be taken into particular account. The local authority should consider how to apply these further principles on a case by case basis. This reflects the fact that every person is different and the matters of most importance to them will accordingly vary widely.

2. Principles of Adult Safeguarding

See Adult Safeguarding.

In relation to the local authority’s duty to adults experiencing or at risk of abuse or neglect, the six key principles below underpin all adult safeguarding work. They are followed by the relevant ‘I’ statements (Revisiting Safeguarding Practice, Department of Health and Social Care).

  • Empowerment: People are supported and encouraged to make their own decisions and give informed consent. People must always be treated with dignity and respect, and staff should work alongside them to ensure they receive quality, person-centred care which ensures they are safe on their own terms.
  • “I am asked what I want as the outcomes from the safeguarding process and these directly inform what happens.”
  • Prevention: It is better to take action before harm occurs. Prevention and early support are key to effective safeguarding. The principle of prevention recognises the importance of taking action before harm occurs and seeks to put mechanisms in place so they do not reoccur.
  • “I receive clear and simple information about what abuse is, how to recognise the signs and what I can do to seek help.”
  • Proportionality: The least intrusive response appropriate to the risk presented. This means doing the least intrusive response appropriate to the risk presented.
  • “I am sure that the professionals will work in my interest, as I see them and they will only get involved as much as needed.”
  • Protection: This involves organising and delivering support and representation for those in greatest need who may not be able to do it themselves.
  • “I get help and support to report abuse and neglect. I get help so that I am able to take part in the safeguarding process to the extent to which I want.”
  • Partnership: Effective safeguarding cannot be delivered in isolation and should involve other partners and systems that interact with or impact on a person. Local solutions are best achieved through services working with their communities, professionals and services as a whole.
  • “I know that staff treat any personal and sensitive information in confidence, only sharing what is helpful and necessary. I am confident that professionals will work together and with me to get the best result for me.”
  • Accountability: Accountability and transparency in delivering safeguarding. This recognises the importance of being open, clear and honest in the delivery of safeguarding and ensuring there are systems in place to hold practitioners and services to account.
  • “I understand the role of everyone involved in my life and so do they.”

For more information see Revisiting Safeguarding Practice (Department of Health and Social Care) 

3. Further Reading

3.1 Relevant chapters

Promoting Wellbeing

Preventing, Reducing or Delaying Needs

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Audio & Quick Read Summary

CQC Quality Statements

Theme 1 – Working with People: Assessing needs

We Statement

We maximise the effectiveness of people’s care and treatment by assessing and reviewing their health, care, wellbeing and communication needs with them.

What people expect

I have care and support that is coordinated, and everyone works well together and with me.

I have care and support that enables me to live as I want to, seeing me as a unique person with skills, strengths and goals.

Please note: The Liberty Protection Safeguards (LPS) were introduced in the Mental Capacity (Amendment) Act 2019 and proposed a new system for protecting people aged 16 years and above who lack capacity to consent to care and treatment and who need to have their liberty deprived. However, in April 2023, the Department of Health and Social care announced that the LPS will not now be implemented before the next General Election (which must be held, by law, no later than 28 January 2025).

April 2023: This chapter has been updated throughout and should be reread.

1. The Deprivation of Liberty Safeguards

A deprivation of liberty can occur in any care setting and is when a person has their freedom limited in some way.

Schedule 1, Part 1, Section 5(4) of the Human Rights Act, 1998, states that ‘everyone who is deprived of his [their] liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his [their] detention shall be decided speedily by a court and his release ordered if the detention is not lawful’.

In England and Wales, the Deprivation of Liberty Safeguards (DoLS) are used to check that actions which limit the liberty of a person who does not have the capacity to consent to this, are done in the least restrictive way necessary to keep them safe and that it is in their best interests.

DoLS provide a process for a deprivation of liberty to be made legal through either ‘standard’ or ‘urgent’ authorisation processes. These processes are designed to prevent the making of arbitrary decisions to deprive a person of liberty. They also give people a right to challenge deprivation of liberty authorisations.

2. Identifying Deprivation of Liberty

In 2014, a ruling by the Supreme Court (P v Cheshire West and Chester Council and P&Q v Surrey County Council, March 2014) held that, as well as hospitals and registered care homes, a deprivation of liberty can also occur in domestic / home type settings where the state is responsible for enforcing such arrangements. This may include a placement in a supported living arrangement in the community and in a person’s own home. Where a deprivation of liberty occurs outside of a hospital or registered care home, it must be authorised by the Court of Protection (see Section 11, Deprivation of Liberty outside a Hospital or Registered Care Home Setting).

It is crucial that all care providers can recognise when a person might be deprived of their liberty by applying the acid test (see Section 3, below) and then take the required action by applying for an authorisation to the supervisory body / Court of Protection. This extends to all hospitals and registered care homes, domiciliary care providers, and day services.

Associated health and social care professionals must also be able to identify a potential deprivation of liberty, and know how to notify the supervisory body of deprivation of liberty which may be unauthorised.

3. The Acid Test

In its 2014 ruling, the Supreme Court clarified that there is a deprivation of liberty where the person:

  • is under continuous supervision and control (all three of these aspects are required); and
  • is not free to leave;
  • lacks capacity to consent to these arrangements; and
  • whose confinement is the responsibility of the State.

This means that if a person who lacks capacity to consent to this is subject to continuous supervision and control and is not free to leave, they are deprived of their liberty.

The following are factors are not relevant to determining of there is a deprivation of liberty:

  • the person’s compliance or lack of objection;
  • the reason or purpose behind a particular placement; and
  • the extent to which it enables them to live a relatively normal life for someone with their level of disability.

See also Deprivation of Liberty Safeguards: At a Glance (SCIE) 

Practice guidance

Advice from the Department of Health, 2014 states that staff working with people who may be deprived of their liberty should consider the following:

  • MCA principles: the five principles and specifically “considering less restrictive arrangements” principle (see Mental Capacity chapter);
  • Restrictions and restraint: when designing and implementing new care and treatment plans for individuals lacking capacity, be alert to any restrictions and restraint which may be of a degree or intensity that mean an individual is being, or is likely to be, deprived of their liberty (following the acid test supplied by the Supreme Court);
  • Less restrictive alternative: where a potential deprivation of liberty is identified, a full exploration of the alternative ways of providing the care and / or treatment should be undertaken by the allocated worker, in order to identify any less restrictive ways of providing that care which will avoid a deprivation of liberty.
  • 16-17 years olds: A Court of Protection judgement – Birmingham City Council v D (January 29, 2016 Birmingham City Council v D (January 29, 2016) – widened the acid test to apply to 16 and 17 year olds who lack capacity. It also widened the accountability of the State in relation to the acid test, to apply to all those persons who may be deprived of their liberty in the community that the State has a duty to authorise. This does not just apply to persons who are in receipt of a package of care or an assessment, but anyone “who lacks capacity to decide on their place of care and residence, is under continuous supervision and control and is not free to leave.” This judgement, therefore, widens the acid test to include solely private arrangements.

4. Restrictions and Restraint

There is a difference between deprivation of liberty (which is unlawful, unless authorised) and restrictions on a person’s freedom of movement.

Restrictions of movement (if in accordance with the principles and guidance of the Mental Capacity Act 2005 (MCA) can be lawfully carried out in a person’s best interests, in order to prevent harm. This includes use of physical restraint where that is proportionate to the risk of harm to the person and in line with best practice.

Neither the MCA nor DoLS can be used to justify the use of restraint for the protection of members the public, members of staff, or other service users or patients.

Examples of restraint and restrictions include:

  • using locks or keypads to prevent a person leaving a specific area;
  • administration of certain medication, for example to calm a person;
  • requiring a person to be supervised when outside;
  • restricting contact with family and friends, including if they could harm the person;
  • physical intervention to stop someone from doing something which could harm themselves;
  • removing items from a person which could harm them;
  • holding a person so they can be given care or treatment;
  • using bedrails, wheelchair straps, and splints;
  • requiring close supervision / monitoring in the home;
  • the person having to stay somewhere they do not want;
  • the person having to stay somewhere their family does not want.

5. The Deprivation of Liberty Safeguards Process

5.1 Making an application for a standard authorisation

There are several stages involved in authorising a deprivation of liberty.  It is the local authority’s legal duty, as supervisory body, to ensure that where a person is being deprived of their liberty in a hospital or a registered care home, or a deprivation of liberty is being proposed, that steps are taken to safeguard them. This only applies to people where they are ‘ordinarily resident’. The supervisory body organises and oversees the entire process for authorising a deprivation of liberty that occurs in a registered care home or hospital. (See Liverpool City Region: Ordinary Residence Practice Guidance chapter for more guidance on deciding ordinary residence where this is unclear).

Annex 1 in the DoLS Code of Practice provides an overview of the legal process that begins when an application for a standard authorisation is received.

Overview of the Deprivation of Liberty Safeguards Process Flowchart (click on the image to enlarge it).

Overview of the Deprivation of Liberty Safeguards Process Flowchart

As a first step, the managing authority (the hospital or registered care home) must fill out a Form 1 Deprivation of Liberty Safeguards: Resources, DHSC) requesting a standard authorisation. This should be sent to the supervisory body (the local authority), who will then decide whether the person meets the necessary requirements for a standard authorisation to be granted or not granted.

5.2 Managing authority granting an urgent authorisation

The managing authority must decide whether an urgent authorisation should be issued in addition to their application for a standard authorisation (this is their responsibility) or whether just a standard authorisation is needed.

An urgent authorisation enables the managing authority to lawfully deprive the relevant person of their liberty for a maximum of seven days where certain criteria are met. This can be extended for a further seven days by the supervisory body, but only if certain criteria are met (see Deprivation of Liberty Safeguards: Resources, DHSC).

When issuing an urgent authorisation, the managing authority must reasonably believe a standard authorisation would be granted.

Before granting an urgent authorisation, the managing authority should try to speak to the family, friends and carers of the person and inform the person managing the person’s care. Information they provide may assist in preventing the adult being deprived of their liberty. Efforts to contact family and friends and any discussions had with them should be documented in the adult’s case records and on the urgent authorisation. The managing authority also need to ensure that they provide up to date contact information of friends / family / carers / advocates / allocated worker and other professionals on the Form 1 when they make the referral or grant themselves an urgent authorisation.

6. The Assessment Process

Before the supervisory body can grant an authorisation for a deprivation of liberty they will arrange for the following assessments to be completed:

  • mental health assessment: to confirm whether the person has an impairment / disturbance in the mind or brain;
  • eligibility assessment: to confirm the person’s existing or potential status under the Mental Health Act, and whether it would conflict with a DoLS authorisation (this would normally be in a hospital setting).
  • mental capacity assessment: carried out by either the mental health or best interest assessor to determine the person’s capacity to validly consent to their current care arrangements;
  • best interests assessment: confirms whether deprivation of liberty is occurring, whether it could be avoided, and whether it is in the person’s best interests. The assessment will also recommend, how long the authorisation should last and who should act as a person’s representative throughout the period of authorisation;
  • age assessment: to confirm the person is at least 18 years of age for DoLS. If a person is between the ages of 16 and 18 years of age, application needs to be made to the Court of Protection if they need to be deprived of their liberty;
  • no refusals assessment: to confirm whether there is any valid advance decision which would conflict with the authorisation, or a person with a valid and registered Lasting Power of Attorney with authority over welfare decisions.

The assessments must be completed by specially trained professionals.

An Independent Mental Capacity Advocate (IMCA) may also be appointed during the assessment process if required if the person does not have any family / friends or other non-professionals involved (see Independent Mental Capacity Advocate Service chapter).

7. Granting or Not Granting a Standard Authorisation

If any of the requirements in Section 6, The Assessment Process are not met, deprivation of liberty cannot be lawfully granted. This may mean the registered care home or hospital must change its care plan to remove the restrictions and restraints causing the deprivation of liberty.

If all requirements are fulfilled, the supervisory body must grant the deprivation of liberty authorisation, for up to a maximum of one year. The supervisory body must inform the adult, those consulted, and the managing authority in writing.

The restrictions should cease as soon as the adult no longer requires them; they do not have to be in place for the full period of the authorisation.

At the end of the authorisation period, if it is believed the adult still needs to be deprived of their liberty, the managing authority must request another authorisation.

8. Conditions and Recommendations

The best interests assessor can recommend certain conditions are applied to the standard authorisation. The supervisory body are responsible for issuing the recommended conditions if they agree with them or can issue ones of their own on the authorisation, which must be fulfilled by the managing authority.

It is ultimately the supervisory body’s responsibility that any conditions attached to a DoLS authorisation are complied with. The supervisory body should also send a monitoring form to the registered care home or hospital where a person is deprived of their liberty for them to feedback about conditions.

The best interests assessor or supervisory body can also give recommendations to the local authority or organisation managing a person’s care relating to the deprivation of liberty.

9. Appointing a Relevant Person’s Representative

Everyone who is subject to a deprivation of liberty standard authorisation will be appointed a Relevant Person’s Representative (RPR). They must maintain frequent face to face contact with the person, and represent and support them in all related matters, including requesting a review or applying to the Court of Protection to present a challenge to a DoLS authorisation.

If there is no family member, friend, or informal carer suitable to be the person’s representative, the DoLS office will appoint a paid representative. Their name should be recorded in the person’s health and social care records.

The RPR has the right to request the advice and support of a qualified IMCA (see Independent Mental Capacity Advocate Service chapter).

In Re KT & others, which was heard before the Court of Protection, Mr Justice Charles approved the use of general visitors to act as Rule 3A (now Rule 1.2) Representatives when there is no one else – such as family members or advocates – available to act for the person who is the subject of the proceedings. General visitors are commissioned by the Court of Protection to visit the person and others involved in the case, and report back their findings. Appointing a general visitor safeguards the rights of the person in the proceedings.

It is also the responsibility of the Representative or Paid Representative to ensure that any conditions attached to a DoLS authorisation are complied with and report this back to the Court.

See Chapter 7 DoLS Code of Practice for more information on the role of the RPR.

10. Reviewing the Standard Authorisation

This is also known as Part 8 DoLS Review. The registered care home / hospital (managing authority) must monitor and review the adult’s care needs on a regular basis and report any change in need or circumstances that would affect the deprivation of liberty authorisation or any attached conditions. The home / hospital must request a DoLS review if:

  • the adult (who is the ‘relevant person’) no longer meets any qualifying requirements;
  • the reasons they meet the qualifying requirements have changed;
  • it would be appropriate to add, amend or delete a condition placed on the authorisation due to a change in the adult’s situation;
  • the adult or their representative has requested a DoLS review, which they are entitled to do at any time.

The supervisory body where necessary, will arrange for assessors to carry out a review of an authorisation when statutory conditions are met. Statutory DoLS reviews do not replace other health or social care reviews.

A review of the DoLS requirements and or conditions can be undertaken, if necessary, at any time during an authorisation period.

10.1 Where the relevant person ‘objects’ to being deprived of their liberty in a hospital or registered care home

Paragraph 4.45 of the DoLS Code of Practice highlights that ‘if the proposed authorisation relates to deprivation of liberty in a hospital wholly or partly for the purpose of treatment of a mental disorder, then the relevant person (also known as the relevant person) will not be eligible if:

  • they object to being admitted to hospital, or to some or all the treatment they will receive there for mental disorder; and
  • they meet the criteria for an application for admission under section 2 or section 3 of the Mental Health Act 1983 (unless an attorney or deputy, acting within their powers, had consented to the things to which the person is objecting).

A judgement by Mr Justice Baker Royal Courts of Justice February 2015 ruled that in all cases where a person lacks capacity, a DoLS assessment has been completed and the relevant person objects to their placement, a referral must be made to the Court of Protection under S 21A.

This referral would often be made by the Relevant Person’s Representative (RPR) (see Section 9, Appointing the Relevant Person’s Representative) but if this does not happen the local authority should take action to make the referral themselves.

Practice lessons from the judgement include:

  • plan in advance: care should be taken to ensure that a DoLS assessment is completed prior to the move of the relevant person into residential accommodation. There should be very few exceptions to this rule. DoLS assessments should be completed in the case of ‘respite’ care if it is likely that this will become permanent either prior to the placement or with urgency after the placement is started;
  • RPR – conflict of interest: care should be taken that the person appointed as the RPR is willing to make a referral to the Court of Protection if the relevant person objects to their placement. This may be difficult if the RPR is a family member who has a personal interest in the placement of the relevant person. In this case a paid representative should be appointed;
  • local authority duty (supervisory body): the local authority has a duty to check that the RPR meets all the criteria and, if not, to take action to rectify this. They should make resources available to support IMCAs;
  • challenge to placement: where the relevant person is challenging their placement, action should be taken speedily to refer to Court of Protection.

This is the judgement: AJ (Deprivation of Liberty Safeguards). 

11. Deprivation of Liberty outside a Hospital or Registered Care Home Setting

This is also known as deprivation of liberty in a domestic setting.

Applications to authorise a deprivation of liberty in the community are made to the Court of Protection (contact the local authority’s legal department for more details). In most cases the authorisation is a paper-based application that should not require a court hearing.

As a practitioner you will also need to ascertain whether the person who has a care package at home or in supported living, may be deprived of their liberty by way of their care plan – that is, do they meet the ‘acid test’ as described above in Section 3, The Acid Test?

  • If, after consideration, the person meets the ‘acid test’, you will need to make the application for a deprivation of liberty which can only be authorised by the Court of Protection.
  • Let your manager know that you are working with a person who may be deprived of their liberty. This is important as all referrals to the Court of Protection need to be sent via the relevant legal team and there is a cost involved.
  • Follow the relevant guide from your legal department to make a deprivation of liberty application as soon as possible.
  • It is possible for more than one application to be made to the Court of Protection at a time and the court is currently able to accept numerous applications at the same time.
  • It is important that a person who has a Deprivation of Liberty authorisation in the community also has a Representative (COP Rule 1.2 part 3a); this person is appointed by the Court.

Court of Protection Hub Case Summaries – Court of Protection Hub

12. Alerting to Unlawful Deprivation of Liberty

If a person (professional or otherwise) suspects a person is being deprived of their liberty under the acid test (see Section 3, The Acid Test) and it has not been authorised, they should first discuss it with the registered care home manager, hospital ward manager or supported living manager.

If the manager agrees the care plan involves deprivation of liberty, they should be encouraged to make a request for authorisation. Everyone should be satisfied the care plan contains the least restrictive option available to keep the person safe, and that it is in the person’s best interest.

If the manager does not agree to make a request for a DoLS authorisation, the concerned person should approach the local authority or the Court of Protection to discuss the situation and report the potential unlawful deprivation.

13. Consequences of an Unlawful Deprivation of Liberty

If an organisation breaches a person’s human rights (Articles 5 & 8) by unlawfully depriving them of their liberty, it could result in legal action being taken, including a court declaration that the organisation has acted unlawfully and breached the adult’s human rights. This could lead to a claim for compensation, negative press attention and remedial action taken by commissioners and regulators.

14. Patients Receiving Life Sustaining Treatment

See Intensive Care Society and the Faculty of Intensive Care Medicine Guidance on MCA / DoL

The judgement in R (Ferreira) v HM Senior Coroner for Inner South London held that patients in intensive care  are not necessarily deprived of their liberty as per the acid test in Cheshire West, as the facts in the two cases differ. The effect of this judgement is that even if a patient receiving ‘life sustaining treatment’ (S.4b MCA) appears to be deprived of their liberty, they will not be said to be so if the primary condition they are being treated for is a physical condition even if there is an underlying mental disorder and they are an inpatient in intensive care.

“There is in general no need in the case of physical illness for a person of unsound mind to have the benefit of safeguards against deprivation of liberty where the treatment is given in good faith and is materially the same treatment as would be given to a person of sound mind with the same physical illness.” (Judge Lady Justice Arden)

The Judge also held however that there may be some circumstances where a deprivation of liberty arises and needs to be authorised. In NHS Trust I v G [2015] for example, a hospital sought authorisation to deprive a pregnant woman of her liberty. The order prevented her from leaving the delivery suite and authorised invasive medical treatment such as a caesarean section.

Any treatment, therefore, for a primary condition which is a physical condition will not constitute a deprivation of liberty where the same treatment would be given to a patient who had capacity.

15. Further Reading

15.1 Relevant chapters

Mental Capacity

Independent Advocacy

15.2 Relevant information

Deprivation of Liberty Safeguards: Code of practice to supplement the main Mental Capacity Act 2005 Code of Practice

Deprivation of Liberty Safeguards: Forms and Guidance (Department of Health and Social Care)

Department of Health Advice Note (28 March 2014)

Identifying a deprivation of liberty: a practical guide – summaries of key cases, Law Society (2015)

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Lone workers are ‘those who work by themselves without close or direct supervision’ (Health and Safety Executive). Many hazards lone workers face are similar to those of other workers, but the risks however, may be greater because the worker is on their own.

There is no specific law dealing with lone working, however all health and safety legislation applies equally to lone workers.  Employers have a duty to assess the risks to their employees who are lone working and take steps to avoid or control risks where necessary. This must include:

  • involving workers when considering potential risks and how to control them;
  • acting to ensure risks are removed where possible, or control measures put in place;
  • training and supervision; and
  • reviewing risk assessments.

It may also include:

  • understanding some tasks may be too difficult or dangerous to be carried out by an unaccompanied worker;
  • when a risk assessment shows it is not possible for the work to be conducted safely by a lone worker, addressing that risk by making arrangements to provide help or support.

Conducting risk assessments should help the employer decide on the right level of supervision.

Common practices used by organisations to manage the personal safety of their lone workers include:

  • conducting risk assessments
  • implementing a lone worker policy and procedure
  • implementation of a buddy system
  • lone worker training
  • conflict management training
  • provision and use of monitoring systems and other equipment (alarms, trackers, mobile phones).
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Coronavirus / COVID-19

1. Introduction

Whistleblowing is also known as raising concerns at work; it is when a person intentionally and purposefully brings attention to an activity they have witnessed or have a credible suspected consideration of a wrongdoing that is happening or has happened in the workplace. This may be relating to:

  • criminal activity;
  • miscarriages of justice;
  • danger to health and safety;
  • damage to the environment;
  • failure to comply with any legal obligation or regulatory requirements;
  • bribery; and / or
  • the deliberate concealment of any of the above matters.

Please note: Any concerns relating to an adult who is experiencing or at risk of abuse or neglect must be reported via the local safeguarding adults board procedures.

Anyone working at any level of the organisation, including volunteer or contractors, should raise any concerns that they may have. It is expected that staff who have serious concerns about any aspect of the organisation’s work or that of another worker, should voice their concerns.

No one acting in good faith will be penalised for doing so. Any attempt to victimise employees for raising genuine concerns or attempts to prevent such concerns being raised should be regarded as a disciplinary matter.

Knowingly and intentionally raising malicious, unfounded allegations should also be regarded as a disciplinary matter.

Whistleblowing does not:

  • require employees to investigate in any way in order to prove that their suspicions are well founded (although they should have reasonable grounds for their suspicions);
  • replace the organisation’s grievance procedure which is available to employees concerned about their own situation;
  • replace the organisation’s disciplinary procedure; or
  • replace the complaints procedure (whistleblowing is not the same as a complaint) – see Complaints.

2. Information for Concerned Members of Staff

2.1 Raising concerns

Where possible the member of staff should raise the issue/s directly with the individual concerned, the organisation supports open and honest dialogue between colleagues and sharing of constructive feedback in order to promote best practice, safety and honesty.

Where it is not possible to raise concerns directly with the individual, or where this has been attempted but did not result in the activity being discontinued, the concerns should be raised with the concerned member of staff’s line manager (this can be done informally through open discussion or formally through an arranged meeting or written document / email).

In most cases, the matter will be dealt with at this stage. The earlier concerns are raised, the easier it will be to for action to be implemented.

2.2 The staff member is unable to speak to their manager

If the staff member feels unable to raise the issue with their line manager, for instance if the concern relates to their line manager or if the line manager does not take appropriate action to resolve the issue, the member of staff should then approach their senior manager.

The organisation recognises that in some circumstances it may be appropriate for the member of staff to report their concerns to an external body. See also Raising Concerns at Work: Whistleblowing Guidance for Workers and Employers in Health and Social Care.

If the member of staff decides to blow the whistle to someone other than their employer, they must make sure they have chosen the correct person or body for the issue. A ‘prescribed person’ can be a regulatory or legislative body, as well as an individual, who is  independent of the organisation to which the whistleblower belongs but has an authoritative relationship with it. See Appendix 2 for list of Useful Organisations, including prescribed persons.

Please note: it will rarely, if ever, be appropriate to contact the media. Advice should first be sought from a prescribed person before reporting a concern to any such external body.

2.3 Action as a result of raising concerns

This will depend largely on the nature of the concerns raised.

In most instances the manager, or other person with whom the staff member has raised concerns, will arrange to meet them as soon as possible away from the workplace, if necessary. This is to enable the person to explain fully the nature of their concerns. The member of staff should be asked how they would want their concerns to be resolved.

Where appropriate, concerns that are raised may:

  • be investigated by management, internal audit, or through the disciplinary process;
  • be investigated under another procedure, e.g. safeguarding adults;
  • be reported to the organisation’s standards or management committee / team;
  • be referred to the police;
  • be referred to an external auditor;
  • form the subject of an independent inquiry.

Within 10 working days, the member of staff should receive in writing:

  • an acknowledgment the concern has been received;
  • an indication how the matter will be dealt with;
  • where applicable, an estimate of how long it will take to provide a final response;
  • information on staff support mechanisms;
  • contact details of the designated contact person dealing with their concern.

If, during the investigation, the staff member is concerned about what progress is being made, require support or reassurance, or feel they may be being victimised or harassed as a result of making the disclosure, they should raise this with the relevant manager/supporting organisation.

The designated contact should inform the staff member in writing of the outcome of their concern. However, this will not include details of any disciplinary action that may result, as this will remain confidential to the individual/s concerned.

Wherever possible, the matter should be addressed within 28 days of the member of staff raising the concern/s.

Please note: due to the likely sensitive nature of raising concerns at work, the member of staff should discuss the matter with as few people as possible.

2.4 The staff member does not agree with the outcome

If the member of staff does not agree with the way their concerns have been dealt with by local management, they may choose to escalate their concerns to senior management.

The staff member may otherwise feel it necessary to report their concerns to an external body, however this must be appropriate for the issue concerned. See Appendix 2, Useful Organisations for a list of prescribed persons.

3. Information for Managers

3.1 Introduction

Managers are expected to develop and promote open and supportive communication.

They should lead by example, encourage team meetings to be environments for staff to air concerns, support training which promotes organisational values and empowers staff with the confidence to speak up and raise concerns.

3.2 When concerns have been raised

The manager must arrange to meet the person raising the concerns as quickly as possible to establish exactly the nature of the concern and understand what has given rise to it. The manager must:

  •  consider carefully where the meeting should take place and allow the person raising the concerns to be accompanied by an appropriate friend or colleague, if that is their wish;
  • make a note of their conversations with the person raising the concerns and agree the accuracy of that note with them;
  • be sensitive to the fact that the person concerned may feel uncomfortable about raising issues regarding a colleague or a manager;
  • consider and address the support needs of the person who is the subject of the concerns and of the person raising them;
  • prioritise the process of dealing with the issue remembering that, wherever possible, it should be addressed within 28 days of the matter being raised by the staff member.

See also Confidentiality.

3.3 Once concerns have been established

If the issue appears to be relatively minor and straightforward in nature, the manager may decide to resolve it informally and directly with the individual who is the cause of the concern/s.

If the issue appears to be complex or more serious, the manager must first consider whether any immediate action is necessary to protect the needs of co-workers, or adults with care or support needs. This may include referring the matter to their own manager, human resources, the police and/or initiating local safeguarding adult procedures.

Where appropriate, the member of staff raising concerns should be informed of the action taken.

3.4 Where the manager has no line management responsibility for the individual who is the cause of the concerns

The manager must refer the matter to the appropriate manager with responsibility for the individual who is the cause of the concerns.

In considering who to refer the matter to, the manager should take account of the level of seriousness of the concerns and any reservations expressed by the person raising them about to whom they should be referred.  Advice should be sought from senior management or Human Resources in the event of any uncertainty.

See Guidance for Managers, Whistleblowing Helpline.

3.5 Recording

A record of concerns raised together with a record of action taken in response should be retained on the personal file of the staff member who raised the concern and, where appropriate, on the personal file of the staff member the concern was raised about. The length of time the record should be retained should be reviewed at regular intervals. The record on the file of the person complained about should exclude the identity of the staff member who raised the concern in cases where anonymity has been maintained.

4. Confidentiality

It is preferable that a serious concern is raised responsibly rather than not at all. The organisation should when requested, therefore, respect the confidentiality of a member of staff raising a concern.

In some cases, confidentiality may not be possible, for example when reporting abuse or a criminal offence, as action may need to be taken.

Staff can be expected to be consulted if it does become necessary to reveal their identity.

If there is an unauthorised disclosure of someone’s identity, disciplinary action may be taken against that individual.

5. Protection and Support for Whistleblowers

The Public Interest Disclosure Act 1998 provides legal protection against detriment for workers who raise concerns in the public interest.

Bullying, harassment or victimisation (including informal pressures) by other members of staff towards someone who raises a concern will not be tolerated. Retaliation may include:

  • frequent and undesirable changes in work assigned;
  • unsubstantiated disciplinary action;
  • unjust denial of promotion or transfer.

Senior management should be vigilant and may need to take appropriate action to protect staff who raise a concern in good faith.

Staff must not threaten or take retaliatory action against whistleblowers. Anyone involved in such conduct will be subject to disciplinary procedures.

If a staff member believes they have suffered any such treatment, they should inform their manager – or suitable other person – immediately. If the matter is not remedied they should raise it formally through the organisation’s grievance procedure.

Appendix 1: Top Tips for Workers

Employees Online Tool for Raising Concerns, Whistleblowing Hotline.

Appendix 2: Useful Organisations

Blowing the whistle: list of prescribed people and bodies – is a list of the prescribed persons and bodies.

Whistleblowing Helpline

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1. Introduction

The Data Protection Act 2018 specifies the duties of local authorities and other agencies in relation to holding, storing and processing of the personal data of living individuals (referred to within the Act as data subjects). Such information will either be held on IT databases or in hard copy.

The Act terms people who request information from the council that it holds on them  ‘data subjects’.

The Act terms staff who control the manner and the purpose of personal data processing ‘data controllers’.

The Act allows data subjects to know about and obtain information held on them by the local authority and other agencies.

2. People Eligible to Request and Receive Information

In most circumstances it is only people (data subject) who  the council holds information on who are allowed to receive information held about them by the local authority. The information provided by the local authority must only relate only to them and no one else.

If a solicitor makes a request on behalf of a client to access their case records, the solicitor must obtain written consent from the adult which allows the solicitor to receive the information. This consent must be sent to the local authority as part of the application.

2.1 Capacity

Although there are no specific provisions in the Data Protection Act regarding access of records in relation to people who lack capacity, the Mental Capacity Act 2005 enables a third party to exercise subject access rights on behalf of such an adult. It is reasonable to assume, therefore that an attorney with authority to manage the property and affairs of an adult will have the appropriate authority. The same applies to a person appointed by the Court of Protection to make decisions about such matters.

3. Information People are entitled to Receive

In theory people (the data subjects) are allowed to receive all non-exempt information (see 3.1 Exempt Information below) held about them by the local authority. People making such requests should be asked what information they specifically want to see. This will reduce the likelihood of a request being denied due to the inclusion of exempt information.

3.1 Exempt Information

In some circumstances it may not be possible to allow people to access to some or all of the information in their records, for example if it mentions another person (see 3.2 Third Party Information below), if giving them the information may cause them harm, or if it is needed for the prevention or detection of a crime. The person should usually be told the reason why it is not possible for them to access their records.

Correspondence between local authority departments and its legal services department is privileged and therefore also exempt from disclosure.

3.2 Third Party Information

Responding to a request may involve providing information relating to another individual who can be identified from that information. This is third party information. In most cases, the local authority will require written consent of that third party before disclosing the information to the data subject.

4. Making an Application

The person making the request should find out in advance from the local authority whether fees are payable (customer to add local information).

Requests for access to information are called ‘Subject Access Requests (SARs)’. These must be made in writing in relation to information held by the local authority on the person. For more information and a suggested template letter see Find out how to Request your Personal Information.

5. Timescales

The local authority has 40 calendar days to respond to a written request. This allows time for personal information to be collated all involved departments within the local authority, analysed to ensure it does not contain exempt information (see 3.1 Exempt Information) and decisions made about whether there is such information that cannot be given to the person.

[readingconfirm]

– End –

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If hard copy files are still in use, the customer should populate this section. It should contain:

  • an overarching statement about the importance of file organisation – why it is important for example risk management, handover of cases, legal document, ease of access to information;
  • a contents list of the sections of a Safeguarding file;
  • a description of the contents of each section of a Safeguarding file;
  • a contents list of the sections of an Adult Social Care file;
  • a description of the contents of each section of an Adult Social Care file.

 The customer should also add a link to local electronic records procedures here.

[readingconfirm]

– End –

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Audio & Quick Read Summary

CQC We and I Statements

Theme 3 – How the local authority ensures safety in the system: Safe systems, pathways and transitions

We statement

We work with people and our partners to establish and maintain safe systems of care, in which safety is managed, monitored and assured. We ensure continuity of care, including when people move between services.

I statements

When I move between services, settings or areas, there is a plan for what happens next and who will do what, and all the practical arrangements are in place.

I feel safe and supported to understand and manage any risks.

Further Reading

Relevant chapters

Assessment

Supervision

Data Protection: Legislation and Guidance

Relevant information

Professional Standards and Professional Standards Guidance (Social Work England)

Social Work Recording (SCIE)

Data Protection and Working from Home (Information Commissioner’s Office) 

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CQC Quality Statement

Theme 4 – Leadership: Learning, improvement and innovation 

We statement

We focus on continuous learning, innovation and improvement across our organisation and the local system. We encourage creative ways of delivering equality of experience, outcome and quality of life for people. We actively contribute to safe, effective practice and research.

Audit is an essential part of a learning organisation; it supports continuous improvement, responds to user feedback, complaints and quality assurance.

An audit cycle can address service delivery, professional roles and responsibilities or new ways of working, for example: performance management, supervision, outcomes for adults with care and support needs and their carers, case recording and integrated working.

Audits may be conducted on a short or long term basis, and measure simple or complex issues.

Essentially, an audit involves reviewing the way care is provided against agreed and quality standards.

The audit framework has four stages:

  1. Preparing and planning
    • Identify and agree an area of care which requires audit: this may be an issue highlighted by adults or carers, or is one that has emerged as a high risk for example a new area of service / practice or an area for improvement.
    • Agree the aim, objectives and standards: useful guidance includes SCIE or NICE (see Organisations) or local/ best practice standards;
  2. Reviewing quality
    • Develop audit criteria that measure performance against agreed standards: these are the specific elements that describe the quality measurements;
    • Collate and analyse data, report results: as part of this stage, the process for providing feedback to those who took part should be agreed and planned. This includes adults and carers, staff and relevant others;
  3. Improving practice
    • Consider results and formulate improvement plan: the results from the report should be discussed by the quality assurance group, senior management team as appropriate, and other relevant meetings. Discussions may include the potential causes of the problems (for example lack of resources, inadequate knowledge / skills, lack of awareness of procedures), which should be improved and how. Discussions may also include adults, carers and staff;
    • Implement the improvement plan: it may be that amendments to practice may have already occurred as a result of doing the audit;
  4. Sustaining improvement
    • Repeat the data collection to measure improvement: it is important to re-do the audit cycle for a second time in order to discover whether the agreed actions have taken place.

 

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CQC We Statement

Theme 4 – Leadership: Learning, improvement and innovation 

We statement

We focus on continuous learning, innovation and improvement across our organisation and the local system. We encourage creative ways of delivering equality of experience, outcome and quality of life for people. We actively contribute to safe, effective practice and research.

A performance appraisal / Performance and Development Review (PDR) is a systematic and regular (usually annual) process that assesses an individual member of staff’s performance in relation to pre-established criteria and objectives. It is an important opportunity for a staff member to gain feedback on their performance from their manager, provide a summary of their work and achievements and identify opportunities to further develop their skills through training. It offers a formal opportunity for managers to provide motivation to a member of staff, even if there have been areas of concern.

The objectives for the appraisal / PDR should be agreed by both the manager and member of staff either once the staff member has been confirmed in post (in the case of a new employee) or at the last PDR (for staff in continuing employment). The objectives should be a mix of specific areas of interest for the individual staff member, those related to the post / team, and those which reflect the directorate’s vision and direction.

Other aspects of the staff member’s performance should also be considered, such as team working, strengths and weaknesses, overall behaviour, and potential future achievements.

Preparation is key to a successful and productive appraisal / PDR meeting, the manager and staff member should each complete appraisal and work planning documents prior to commencement of the session. It is crucial that all issues are supported with evidence from work completed throughout the year; this may be from a variety of sources including Supervision

Issues that have been raised in supervision since the last review – either as good practice or areas where improvement is required – should be discussed.

Following a review of the achievements (or otherwise) from the previously agreed objectives, new or revised objectives should be agreed within defined timescales. This will include identified training needs, either as a result of new areas of interest expressed by the staff member for development that complements their current post, or as a result of acknowledged issues which require improvement.

If the manager and member of staff do not agree on achievements of the previous set of objectives, or training needs or setting of future objectives, these should be recorded with supporting evidence. The local performance development review policy and procedure should contain a course of action for responding to such disagreements.

The appraisal / PDR discussion and the agreed future objectives should be recorded and signed by the manager and counter signed by the staff member, who should also be provided with a copy. This may be done via email as an electronic documentation of the agreement.

Further Reading

Relevant chapters

Supervision

Workforce Development

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CQC Quality Statements

Theme 1 – Working with People: Supporting people to live healthier lives

We Statement

We support people to manage their health and wellbeing so they can maximise their independence, choice and control. We support them to live healthier lives and where possible, reduce future needs for care and support.

What people expect

I can get information and advice about my health, care and support and how I can be as well as possible – physically, mentally and emotionally. I am supported to plan ahead for important changes in my life that I can anticipate.

1. What are Deferred Payment Agreements?

The establishment of the universal deferred payment scheme will mean that people should not be forced to sell their home in their lifetime to pay for their care. By entering into a deferred payment agreement (DPA),  a local authority agrees to:

  • defer the payment of charges due to it from the adult, for the costs of meeting needs in a care home or supported living accommodation; or
  • defer the repayment of a loan to the adult in instalments, to cover the costs of care and support in a care home or supported living accommodation.

The Care Act 2014 sets out where the amount of the DPA, or part of the sum, owed to the local authority does not need to be repaid until a specified time.

The Regulations specify when a local authority may or must offer a person a deferred payment or a loan.

Deferring payment can help people to delay the need to sell their home, and provides peace of mind during a time that can be challenging (or even a crisis point) for them and their loved ones as they make the transition into care.

“Deferred payment is fundamentally about having a mechanism that avoids the family facing the trauma of a fire sale of the property at the moment of crisis. Having a deferred payment gives that piece of mind of knowing that is not something they have to address at that point. It also ensures that the property is not sold at a point when everything else is going on, potentially at a lower price than it would achieve if properly marketed over time. It is an important protection of the asset, but much more important protection of the emotional crisis that a family is in at the point at which this takes place. That is the best way to understand what a deferred payment should be about.” (Paul Burstow, Hansard 2014)

A deferred payment agreement can provide additional flexibility for when and how someone pays for their care and support. It should be stressed from the outset that the payment for care and support is deferred and not ‘written off’ – the costs of provision of care and support will have to be repaid by the individual (or a third party on their behalf) at a later date.

The scheme is universally available throughout England, and local authorities are required to offer deferred payment agreements to people who meet certain criteria governing eligibility for the scheme (see Section 2, Qualifying Criteria for Deferred Payment Agreements). Local authorities need to ensure that adequate security is in place for the amount being deferred, so that they can be confident that the amount deferred will be repaid in the future. Local authorities are also encouraged to offer the scheme more widely to anyone they feel would benefit who does not fully meet the criteria. The amended Regulations give the local authority greater flexibility to do this.

A deferral can last until death, however many people choose to use a deferred payment agreement as a ‘bridging loan’ to give them time and flexibility to sell their home when they choose to do so. This is entirely up to the individual to decide. Further details on deferred payment agreements are set out in the sections below.

2. Qualifying Criteria for Deferred Payment Agreements

Deferred payment agreements are designed to prevent people from being forced to sell their home in their lifetime to meet the cost of their care. Local authorities must offer them to people who meet the criteria below and who are able to provide adequate security (see Section 13, Obtaining Security). Subject to these criteria they must offer them to people who have their needs met by the local authority, and also people who meet their own needs. The regulations provide that someone must be offered a deferred payment agreement if they meet all of the following criteria at the point of applying for a deferred payment agreement. Broadly, they are that the:

  1. person is ordinarily resident in the local authority area or present in the area but of no settled residence; or ordinarily resident in another local authority area but the local authority has determined that they will or would meet the individual’s care needs under section 19 of the Care Act if asked to do so [see note 1];
  2. person has needs which are to be met by the provision of care in a care home. This is determined when someone is assessed as having care and support needs [see note 2] which the local authority decides should be met through a care home placement;
  3. person has less than (or equal to) £23,250 in assets excluding the value of their main or only home (that is in savings and other non-housing assets and housing assets other than their main or only home);
  4. person’s home is not disregarded [see note 3], for example it is not occupied by a spouse or dependent relative as defined in regulations on charging for care and support (that is someone whose home is taken into account in the local authority financial assessment and so might need to be sold).
  5. the person agrees to the agreement.

Note 1: Where a local authority is meeting an individual’s care and support needs under section 19(2) of the Care Act.

Note 2: When someone is arranging their own care and support and the authority has not performed an assessment, this condition is satisfied when someone would be assessed as having eligible needs were the authority to have carried out such an assessment.

Note 3: Disregarded for the purposes of the financial assessment carried out under section 17 of the Act.

As well as providing protection for people facing the prospect of having to sell their home to pay for care, deferred payment agreements can offer valuable flexibility, giving people greater choice over how they pay their care costs. Local authorities are, at their discretion, permitted to be more generous than these criteria and offer deferred payment agreements to people who do not meet the above criteria.

In deciding whether someone who does not meet all of the criteria above should still be offered a deferred payment, some considerations a local authority may wish to take into account include (but are not limited to):

  • whether meeting care costs would leave someone with very few accessible assets (this might include assets which cannot quickly / easily be liquidated or converted to cash);
  • if someone would like to use wealth tied up in their home to fund more than just their core care costs and purchase affordable top ups (see Section 8, How much can be Deferred?);
  • whether someone has any other accessible means to help them meet the cost of their care and support; and/or
  • if a person is narrowly not entitled to a deferred payment agreement given the criteria above, for example because they have slightly more than the £23,250 asset threshold. This should include people who are likely to meet the criteria in the near future.

Local authorities may also at their discretion enter into deferred payment agreements with people whose care and support is provided in supported living accommodation.

The local authority should not exercise this discretion unless the person intends to retain their former home and pay the associated care and accommodation rental costs from their deferred payment. Further details on precisely what qualifies as supported living accommodation are set out in the regulations.

Deferred payment agreements cannot be entered into in order to finance mortgage payments on supported living accommodation.

In short, a local authority may enter into a deferred payment if:

  • the adult’s needs for care and support are being met by providing accommodation in a care home or in supported living accommodation, or if the local authority had been asked to meet that person’s needs it would have provided for either of those types of accommodation;
  • the local authority has obtained adequate security for the payment of the deferred amount;
  • the adult agrees to the agreement.

3. Types of Deferred Payment Agreements

Deferred payment agreements can take two forms:

  • the local authority pays the care home or supported living accommodation directly and defers the charges due to it from the individual (traditional type);
  • the individual pays the care provider for their care and the local authority loans them the cost of care in instalments less any contributions the individual contributes from other sources (loan type).

When considering their approach as to when or whether to offer loan or traditional type deferred payment agreements, local authorities should have regard to their duties under the Care Act, including their duties under the wellbeing principle and their market duties. Local authorities cannot refuse to enter into a loan type deferred payment agreement if the qualifying criteria are met and the individual requests it, as set out in the DPA Regulations 2014 (subject to Section 4, Permission to Refuse a Deferred Payment Agreement below).

The local authority must comply with all relevant legislation and act under the guidance.

In all cases, a local authority is only required to enter into a deferred payment agreement to cover the costs of care and support which it considers necessary.

4. Permission to Refuse a Deferred Payment Agreement

A local authority must offer a deferred payment to someone meeting the criteria governing eligibility for deferred payment agreements (DPAs) and who is able to provide adequate security for the debt (obtaining a land registry charge on their property, see Section 13, Obtaining Security), and may offer a deferred payment agreement to others who do not meet the criteria, at their discretion.

However there are certain circumstances in which a local authority may refuse a request for a deferred payment agreement (‘permission to refuse’), even if a person meets the eligibility criteria and the local authority would otherwise be required to offer the person an agreement. This permission (or discretion) to refuse is intended to provide local authorities with a reasonable safeguard against default or non-repayment of debt.

A local authority may refuse a deferred payment agreement despite someone meeting the eligibility criteria where:

  1. a local authority is unable to secure a first charge on the person’s property;
  2. where someone is seeking a top up [see note 4];
  3. where a person does not agree to the terms and conditions of the agreement, for example a requirement to insure and maintain the property.

Note 4: In these situations, a local authority should still seek to offer a deferred payment agreement but should be guided by principles in the section below (see Section 8, How much can be deferred?) to determine a maximum amount that is sustainable (or reflects their core care costs without any top-ups) and agree a deferral. The person can then choose whether they wish to agree.

In any of the above circumstances, a local authority should consider whether to exercise its discretion to offer a deferred payment anyway (for example, if a person’s property is uninsurable but has a high land value, the local authority may choose to accept charges against this land as security instead).

The main reason in practice for a local authority refusing to defer care home charges is when the amount of the care charges deferred has already reached the equity limit. In such circumstances, the local authority will stop deferring further care home charges. Interest and administration charges may continue to accumulate (see Section 14, Interest Rate and Administration Charge).

5. Circumstances in which Local Authorities may stop Deferring Care Costs

There are also circumstances where a local authority may refuse to defer any more charges for a person who has an active deferred payment agreement. Local authorities cannot demand repayment in these circumstances, and repayment is still subject to the usual terms of termination, see Section 16, Termination of the Agreement.

The local authority should provide a minimum of 30 days’ advance notice that further deferrals will cease; and should provide the person with an indication of how their care costs will need to be met in future. Depending on their circumstances, the person may either receive local authority support in meeting the costs of their care, or may be required to meet their costs from their own income and assets. Local authorities exercising these powers to cease deferring additional amounts should consider their decision to do so whilst considering the person’s circumstances and their overarching duties under the wellbeing principle (see Promoting Wellbeing chapter).

Circumstances in which a local authority may refuse to defer any more charges include:

  1. when a person’s total assets fall below the level of the means test (see Charging and Financial Assessment chapter) and the person becomes eligible for local authority support in paying for their care;
  2. where a person no longer has need for care in a care home (or where appropriate supported living accommodation);
  3. if a person breaches certain predefined terms of their contract (which must be clearly set out in the contract) and the local authority’s attempts to resolve the breach are unsuccessful and the contract has specified that the authority will stop making further payments in such a case; or
  4. if, under the charging regulations (see Charging and Financial Assessment chapter), the property becomes disregarded for any reason and the person consequently qualifies for local authority support in paying for their care, including but not limited to:
    • where a spouse or dependent relative (as defined in charging regulations) has moved into the property after the agreement has been made, where this means the person is eligible for local authority support in paying for care and no longer requires a deferred payment agreement;
    • where a relative who was living in the property at the time of the agreement subsequently becomes a dependent relative. The local authority may cease further deferrals at this point.

Local authorities should not exercise these discretionary powers if a person would, as a result, be unable to pay any tariff income due to the local authority from their non-housing assets.

Local authorities must also cease deferring further amounts when a person has reached the ‘equity limit’ that they are allowed to defer (see Section 6, How much can be Deferred?), or when a person is no longer receiving care and support in either a care home setting or in supported living accommodation. This also applies when the value of the security has dropped and so the equity limit has been reached earlier than expected.

See Case Study: Deferred Payments Arrangements.

6. Information and Advice

See also Information and Advice chapter.

Under the Care Act 2014, local authorities have responsibilities to provide information and advice about peoples’ care and support, including  deferred payment schemes.

In order to be able to make well-informed choices, it is essential that people access appropriate information and advice before taking out a deferred payment agreement (DPA). It is also important that people are kept informed about their DPA throughout the course of the agreement. See also Financial Information and Advice chapterSection 14, The Local Authority’ Responsibilities whilst the Agreement is in place and Section 16, Termination of the Agreement).

Deferred payment agreements are often made during a time that is demanding for a person and their loved ones – a period when they are moving into a care home. People may need additional support during this period, and the local authority has a role in providing this support, particularly if a move into care is made rapidly and / or at an unexpected point. The local authority must provide information in a way which is clear and easy to understand, and it should be designed to ease the move into a care home for people, their carers and their families.

Carers and families often help people to make decisions about their care and how they pay for it. Local authorities should as appropriate invite carers and/or families to participate in discussions, and should also provide them with all the information that would otherwise be given to the person they care for, subject (where required) to the consent of the person with care and support needs (if they have capacity) or someone else with appropriate authorisation. In doing this, they must ensure compliance within the principles of the Mental Capacity Act 2015 and data protection legislation, and duties pertaining to information and advice (see Information and Advice and also Section 5, Capacity Issues).

If a local authority identifies someone who may benefit from or be eligible for a DPA or a person approaches them for information, the local authority must tell them about the DPA scheme and how it works. This explanation should, at a minimum:

  • set out clearly that the fees are being deferred or delayed and must still be paid back at a later date, for example through the sale of the home (potentially after the individual’s death);
  • explain the types of security that a local authority is prepared to accept (as set out by each local authority in a publicly – available policy; see Section 11, Obtaining Security);
  • explain that if a home is used as security, the home may need to be sold at a later date to repay the amount due;
  • explain that the total amount they can defer will be governed by an equity limit (discussed in Section 6, How much can be Deferred?) which may change if the value of their security changes;
  • explain the circumstances where the local authority may cease to defer further amounts (such as when the person qualifies for local authority support in paying for their care), and the circumstances where the local authority has to stop deferring further amounts (such as when the person reaches their equity limit);
  • explain how interest will be charged on any amount deferred;
  • explain that they may be liable to pay administrative charges;
  • explain what happens on termination of the agreement, how the loan becomes due and their options for repayment;
  • explain what happens if they do not repay the amount due;
  • set out the qualifying criteria for a DPA;
  • detail the requirements that must be adhered to during the course of the DPA;
  • explain the implications that a deferred payment agreement may have on their income, their benefit entitlements, and charging;
  • provide an overview of some potential advantages and disadvantages of taking out a DPA, and explain that there are other options for paying for their care that they may wish to consider;
  • note the existence of the 12 week disregard, which will afford those who qualify for it some additional time to consider their options in paying for care; and
  • suggest that people may want to consider taking independent financial advice (including flagging the existence of regulated financial advice), in line with the Care and Support Statutory Guidance (see Charging and Financial Assessment chapter).

Local authorities should provide easy to read information about how the scheme works. This may be in the form of a standardised information sheet.

Local authorities must provide this information and advice in formats that ensure compliance with the requirements of the Equality Act 2010 (in particular, they must ensure where appropriate that the information is accessible to the sensory impaired, people with learning disabilities, and people for whom English is not their first language) (see Information and Advice).

Where relevant, local authorities should provide information and advice on DPAs at the earliest appropriate opportunity during the period of the 12 week disregard and  should aim to ensure that people are able to make a smooth transition from the 12 week disregard to the DPA if they opt to enter into an agreement. This means ensuring as far as possible that a DPA is available by the first day of week 13.

Local authorities should advise people (where appropriate) that they will need to consider how they plan to use, maintain and insure their property if they take out a DPA; that is whether they wish to rent, to prepare for sale, or to leave it vacant for a period. The local authority should also advise if it intends to place conditions on how the property is maintained whilst the DPA is in place (authorities will usually include requirements for people to maintain and insure their homes in the terms and conditions of a deferred payment agreement; see Section 15, Making the Agreement).

Basic information and advice should be available for homeowners on how they may choose to use their property when they enter care, for example information on how they may go about renting their property, and the potential impact on other people living in the property if a sale is required after their death.

People should be directed to more specialist organisations if needed, who can provide further advice on this issue, including information about their legal responsibilities as landlords and their obligations to any potential tenants.

See also Deferred Payment Case Studies

7. Mental Capacity

See also Mental Capacity.

As a deferred payment agreement can take some time to set up and agree, it is important that both the local authority and the individual consider any potential issues around mental capacity.

Where a person may lack capacity to request a deferred payment, a deputy or attorney (a person with a relevant enduring power of attorney or lasting power of attorney – LPA) may request a deferred payment on their behalf. If a family member requests a deferred payment and they do not have the legal power to act on behalf of the person, the person and the family member should receive information and advice on how to obtain this, through LPA and deputyships.

Where the local authority is the deputy for a person, the local authority deputy may apply for deferred payments where this is in the best interests of the person. Local authorities must not enter into deferred payment agreements with a person lacking mental capacity unless the proper arrangements are in place.

Local authorities and the person applying for a deferred payment (who has capacity) may also want to consider any potential issues around loss of capacity. Information and advice should be provided on options for deputyship, LPA and advocacy (see Independent Advocacy and Independent Mental Capacity Advocate Service). The local authority should confirm what would happen were the person to lose capacity and not have made their own arrangements. For further advice on capacity and financial arrangements see Annex D: Recovery of Debts a deferred payment being effectively a consensually accruing debt to the local authority.

In short, if a person lacks capacity to request a deferred payment, the Care and Support Statutory Guidance advises that a deputy appointed by the Court of  Protection or an attorney appointed by an enduring or lasting power of attorney may be requested  to enter into a deferred payment agreement on the adult’s behalf. Local authorities should in appropriate circumstances provide information about deputyship, legal powers of attorney and advocacy and confirm what would happen if an adult were to lose capacity and had not made his or her own arrangements.

8. How much can be Deferred?

In principle, a person should be able to defer the entirety of their care costs; subject to any contribution the local authority is allowed to require from the person’s income. The local authority will need to consider whether a person can provide adequate security for the deferred payment agreement (see Section 13, Obtaining Security; usually this requirement for ‘adequate security’ will be fulfilled by securing their deferred payment agreement against their property).

If the person is considering a top up, the local authority should also consider whether the amount or size of the deferral requested is sustainable given the equity available from their chosen form of security. A discussion of sustainability may be helpful in all cases to ensure the person is aware of how much care their chosen form of security would afford them.

Three factors will dictate how much a person will defer, each of which is discussed below:

  1. The amount of equity a person has available in their chosen form of security (usually their property);
  2. The amount a person is contributing to their care costs from other sources, including income and (where they choose to) any contribution from savings, a financial product or a third party;
  3. The total care costs a person will face, including any top ups the person might be seeking.

The local authority should also be satisfied that any top up they agree to is sufficiently sustainable. Some guidance for local authorities in assessing whether a top up is sustainable is provided below.

9. Equity Limit

When considering the equity available, the local authority must be guided by an ‘equity limit’ for the total amount that can be deferred and ensure that the amount deferred does not rise above this limit. The equity limit will leave some equity remaining in the security used for the DPA. This will both act as a buffer to cover any subsequent interest which continues to accrue, and will provide a small ‘cushion’ in case of small variations in value of the security.

In the majority of cases a property will be used as security, so the equity limit will provide a cushion against changes in house prices. When calculating progress towards the equity limit, the local authority must also include any interest or fees to be deferred.

If the person intends to secure their deferred payment agreement with a property, the local authority must obtain a valuation of the property. Reasonable property valuation costs are included in the list of administration charges that the local authority can pass on to people, should it  wish to do so. People may request an independent assessment of the property’s value (in addition to the local authority’s valuation). If an independent assessment finds a substantially differing value to the local authority’s valuation, the local authority and person should discuss and agree an appropriate valuation prior to proceeding with the agreement.

Where a property is used as security to offer a deferred payment agreement, the equity limit must be set at the value of the property minus ten percent, minus £14,250 and the amount of encumbrance secured on it. This limit provides some protection to local authorities against changes in the value of the security (such as possible house price fluctuations) and the risk that they may not be able to recoup the full amount owed, but also should mean that people qualify for local authority support if they deplete the equity available in their property (and are consequently not at risk of having to sell their home to pay for care).

The local authority should, when someone is approaching or reaches the point at which they have deferred 70% of the value of their chosen security, review the cost of their care with the person, discuss when the person might be eligible for any means tested support, discuss the implications for any top up they might currently have, and consider jointly whether a deferred payment agreement continues to be the best way for someone to meet these costs.

In summary, the Care and Support Statutory Guidance sets out how the equity limit should be calculated. The local authority should obtain a valuation of the adult’s property from which it must deduct an allowance of ten percent of the value of the property with a further deduction of the lower capital limit (£14,250.00) and also the amount of any charge secured upon the property. The equity limit provides a protection for local authorities and the adult by making certain that there is a buffer or cushion to protect the parties against a change in circumstances, that is price fluctuations. So those persons who reach the equity limit are still able to receive local authority funded care without the need to sell the house.

Upon or shortly before the amount of the care costs paid by the local authority amounts to or exceeds seventy percent of the equity limit , the local authority should review the deferred payment agreement with the adult to establish whether the deferred payment agreement remains appropriate.

See Case Study: Deferred Payments Arrangements.

Local authorities must not allow additional amounts to be deferred beyond the equity limit, and must refuse to defer care costs beyond this (see Section 2, Permission to Refuse a Deferred Payment Agreement). However, interest can still accrue beyond this point, and administrative charges can still be deferred.

10. Contributing to Care Costs from other Sources

A person may meet the costs of their care and support from a combination of any of four primary sources:

  1. income, including pension income;
  2. savings or other assets they might have access to, this might include any contributions from a third party;
  3. a financial product designed to pay for long-term care; or
  4. a deferred payment agreement which enables them to pay for their care at a later date out of assets (usually their home).

The share of care costs that someone defers will depend on the amount they will be paying from the other sources listed above.

The local authority may require a contribution towards care costs from a person’s income, but the person has a right to retain a proportion of their income (the ‘disposable income allowance’). The disposable income allowance is a fixed amount (up to £144 per week) of a person’s income which the local authority must allow the person to retain (if the person wants to retain it). The local authority can require the person to contribute the rest of their income, but must allow the person to retain as much of their disposable income allowance as they want to.

A person may choose to keep less of their income than the disposable income allowance. This might be an advantage to the person as they would be contributing more to the costs of their care from their income, and consequently reducing the amount they are deferring (and accruing less debt to their local authority overall). However this must be entirely at the individual’s decision and the local authority must not compel someone to retain less than the disposable income allowance if the person wants to retain the full amount.

If a person decides to rent out their property during the course of their DPA, the local authority should permit that person to retain a percentage of any rental income they possess. The local authority may want to consider whether to offer other incentives to individuals to encourage rental of properties, though the decision as to whether or not to rent a property must be the person’s and theirs alone.

A person may also contribute to their care costs from payments by a third party (including any contributions available from a financial product) or from their savings. Contributing to care costs from another source would be beneficial for a person as it would reduce the amount they are deferring (and hence reduce their overall debt to the local authority). The local authority must not compel a person to contribute to their deferral from these sources.

In brief, the local authority may require an adult to pay a contribution from their ongoing income towards the cost of care home fees. The person must be allowed to keep a weekly sum known as the disposable income allowance (DIA) with a maximum amount of £144.00 per week. The person may decide not to keep all of the DIA or the person may make payments from other sources, for example savings. The result of such payments would mean the person’s care costs would be less and the amount ultimately repayable to the local authority under the deferred payment agreement would be reduced.

See Case Study: Deferred Payments Arrangements.

11. Care Costs

Before considering in detail how much they will be deferring, a person and usually the local authority should have a rough idea of their likely care costs as a result of the care planning process. Someone may wish to vary their care package (or any top ups they may be considering) following consideration of what they could afford with a deferred payment agreement, but should approach the process with an approximate idea of what their care costs are likely to be.

11.1 Top ups

In principle, people should be able to defer their full care costs including any top ups. At a minimum, when local authorities are required to offer a deferred payment agreement they must allow someone to defer their ‘core’ care costs. To ensure sustainability of the deferral, the local authority has discretion over the amount people are permitted to top up. It should consider any request for top ups, but retain discretion over whether or not to agree to a given top up and should accept any top up deemed to be reasonable given considerations of affordability, sustainability and available equity. The local authority should be mindful of the duties set out in relation to top ups and additional costs in the Care and Support and Aftercare (Choice of Accommodation) Regulations 2014.

In essence, the local authority retains a discretion as to whether it agrees to a top up on the basis of affordability, sustainability and available equity.

12. Sustainability

When deciding on the amount to be deferred in a discretionary deferred payment agreement (particularly when considering top ups), both parties should consider a range of factors to satisfy themselves that the arrangement is sustainable including:

  • the likely period the person would want a DPA for (if they intend to use it as a ‘bridging loan’);
  • the equity available;
  • the sustainability of a person’s contributions from their savings (if they are making one);
  • the flexibility to meet future care needs; and
  • the period of time a person would be able to defer their care costs for.

Deferred payment agreements should prevent people from having to sell their home in their lifetime to pay for their care. The local authority should discuss with the person the projected limit of what their equity could cover, given their projected care costs, and how their care costs might change over time.

This may include a discussion of when they are likely to reach any of the income thresholds and may begin to qualify for local authority support in paying for their care.

If the person is requesting a top up, it is important that the local authority discusses what might happen to any top up requested if the person reaches the equity limit and moves on to local authority support in paying for their care, and ensures that a written agreement is in place (see Annex A: Choice of Accommodation and Additional Payments). In particular, the local authority should make the person aware that once they have reached the equity limit, the local authority may not be willing to fund their top up, and the person may need to find other ways to pay for it or be prepared for a change in their care package.

The local authority should also consider with the person the length of time that their intended contribution to care costs from savings would last, if they intend to contribute to their care costs from their savings. This should include consideration of the impact on care if the person’s savings are depleted (normally this would involve increasing the amount the person is deferring).

An important factor in the sustainability of a deferred payment agreement will be any future care and support needs someone might face. The local authority and the person concerned should consider allowing flexibility for changes in circumstance, including possible escalations of needs, when deciding how much someone should defer. The local authority and the person concerned  should factor any potential changes in circumstances into their considerations of sustainability.

When agreement has been reached between a person and the local authority as to how much they want to defer, the local authority must ensure this is clearly and unambiguously set out in the deferred payment agreement. See also Section 15, Making the Agreement.

The amount being deferred should be reviewed on a regular basis to ensure the deferred amount does not exceed the equity limit. The local authority should have particular regard to the amount deferred as it approaches the equity limit.

While the full costs of a person’s care may be deferred under an approved agreement, the amount to be deferred depends not only the equity limit but also on other factors such as the amount the person must pay weekly towards their care, the payment of top ups as well as the total amount of care costs which a person may need to fund. The local authority must be convinced of the sustainability of the arrangement and the deferred payment sum is safely secured against the deferred payment agreement.

Further details of local authorities’ responsibilities during the course of the DPA are set out below.

See Case Study: Deferred Payments Arrangements.

13. Obtaining Security

The  local authority must have adequate security in place when entering into a deferred payment agreement. The regulations set out one form of security that the local authority must accept, and also provide wider discretion for other forms of security to be accepted as they see fit. The local authority should consider whether another type of security could be provided if a person cannot secure their deferred payment agreement with a charge on a property.

One form of ‘adequate security’ would be the local authority securing a first legal mortgage charge against a property on the Land Register. The local authority must accept a first legal mortgage charge as adequate security and must offer a deferred payment to someone who meets the eligibility criteria for the scheme where the local authority is able to secure a first legal mortgage charge on the property.

In cases where an agreement is to be secured with a jointly owned property, the local authority must seek both owners’ consent (and agreement) to a charge being placed on the property. Both owners will need to be signatories to the charge agreement, and the co-owner will need to agree not to object to the sale of the property for the purpose of repaying the debt due to the local authority (following the same procedure as in the case where an individual is the sole owner of a property).

The local authority must obtain similar consent to a charge being created against the property from any other person who has a beneficial interest in the property.

Under the discretionary scheme, the local authority has discretion to decide what else may constitute ‘adequate security’ for a deferred payment agreement, in cases where a first charge cannot be secured. The  local authority’s decision should be based on an explicit and publicly accessible policy of what other types of security they are willing to consider in addition to a first charge, but the local authority may consider the merits of each case individually. Other forms of security a local authority may choose to consider include (but are not limited to):

  • a third party guarantor – subject to the guarantor having / offering an appropriate form of security;
  • a solicitor’s undertaking letter;
  • a valuable object such as a painting or other piece of art; or
  • an agreement to repay the amount deferred from the proceeds of a life assurance policy.

The local authority has full discretion in individual cases to refuse a deferred payment agreement if it is not satisfied that adequate security is in place. The security should also be revalued when the amount deferred equals or exceeds 50% of the value of the security to assess any potential change in the value (and consequently the person’s ‘equity limit’ should be reassessed in turn). After this revaluation, the local authority should revalue the security periodically to monitor any potential further changes in value. If in either case there has been any substantial change the local authority should review the amount being deferred as well, see Section 8, How much can be Deferred).

In summary, the Care and Support Statutory Guidance outlines what would be adequate security for an authority to enter into a deferred payment agreement. In most instances, this takes the form of a legal charge over the property. When the main asset is the home, the local authority will seek to place a first legal charge on the property.

In the case of a jointly owned property or where the adult has a beneficial interest and may not be a legal owner, the local authority must obtain the owner’s consent to having a charge being placed on the property. The other owners will need to be signatories to the charge agreement and also not object to the sale of the property to repay the debt payable to the local authority.

The local authority is advised to revalue the security when the amount secured under the deferred payment agreement reaches fifty percent of the value of the security. At this juncture, the local authority may wish to review the adult’s equity limit and the amount which can be deferred under the agreement. It is good practice for the local authority to monitor and revalue the security periodically to ascertain whether there are any substantial changes in the value of the property which may impact on the amount of the equity limit and the amount of care costs which may be deferred under the agreement.

14. Interest Rate and Administration Charge

The deferred payment agreement scheme is intended to be run on a cost-neutral basis, with the local authority able to recoup the costs associated with deferring fees by charging interest. The local authority can also recoup the administrative costs associated with DPAs, including legal and ongoing running costs, via administration charges which can be passed on to the individual. Administration charges and interest can be added on to the total amount deferred as they are accrued, although a person may request to pay these separately if they choose. The agreement must make clear that all fees deferred, alongside any interest and administrative charges incurred, must be repaid by the person in full. The local authority must also notify the individual in writing whenever they are liable for an administration charge.

Local authorities will have the ability to charge interest on any amount deferred, including any administration charge deferred. This is to cover the cost of lending and the risks to local authorities associated with lending, for example the risk of default. Where local authorities charge interest this must not exceed the maximum amount specified in regulations. A local authority may (but is not required to) charge the nationally-set maximum interest rate. The same interest rate must be charged on all deferred payments within a local authority.

The national maximum interest rate changes every six months on the first of January and July respectively, to track the market gilts rate specified in the most recently published report by the Office of Budget Responsibility (OBR) plus a 0.15% default component (for example, gilt rate 1% plus 0.15% equals a maximum interest rate of 1.15%). The market gilt rate is currently published in the Economic and Fiscal Outlook, which is usually published twice yearly alongside the Budget and Autumn Statement on the OBR website.

The local authority will have the ability to charge interest on any amount deferred, including any administration charge deferred. This is to cover the cost of lending and the risks to the local authority associated with lending, for example the risk of default. Where the local authority charges interest this must not exceed the maximum amount specified in regulations. The  local authority may (but is not required to) charge the nationally-set maximum interest rate. The same interest rate must be charged on all deferred payments within a local authority.

The local authority must ensure that any changes to the national maximum interest rate are reflected within their authority and are applied to any agreements they have entered into (unless they are already charging less than the national maximum). Individual agreements must also contain adequate terms and conditions to ensure that the interest rate within any given agreement does not exceed the nationally-set maximum.

The local authority must inform people before they make the agreement if interest will be charged, what interest rates are currently set at and when interest rates are likely to change. This is to enable people to make well-informed decisions about whether a deferred payment agreement is the best way for them to meet the costs of their care.

The interest charged and added to the deferred amount will be compounded, and the local authority should ensure when making the agreement that individuals understand that interest will accrue on a compound basis.

Interest can accrue on the amount deferred even once someone has reached the ‘equity limit’ (see Section 6, How much can be Deferred). It can also accrue after someone has died up until the point at which the deferred amount is repaid to the local authority. If the local authority cannot recover the debt and seeks to pursue this through the County Court system (see Annex D: Recovery of Debts), the local authority may charge the higher County Court rate of interest.

The local authority must set their administration charge at a reasonable level, and this level must not be more than the actual costs incurred by the local authority in provision of the Universal Deferred Payment Scheme, as set out in regulations. Relevant costs may include (but are not limited to) the costs incurred by a local authority whilst:

  • registering a legal charge with the Land Registry against the title of the property, including Land Registry search charges and any identity checks required;
  • undertaking relevant postage, printing and telecommunications;
  • costs of time spent by those providing the service;
  • cost of valuation and re-valuation of the property;
  • costs for removal of charges against property;
  • overheads, including where appropriate (shares of) payroll, audit, management costs, legal service.

The local authority should maintain a publicly available list of administration charges that a person may be liable to pay. It is good practice to separate charges into a fixed set up fee for deferred payment agreements, reflective of the costs incurred by the local authority in setting up and securing a typical deferred payment agreement, and other reasonable one time fees during the course of the agreement (reflecting actual charges incurred in the course of the agreement).

15. Making the Agreement

Where someone chooses to enter into a deferred payment agreement, the local authority should aim to have the agreement finalised and in place by the end of the 12 week disregard period (where applicable) (see Annex B: Treatment of Capital), or within 12 weeks of the person approaching the local authority regarding DPAs in other circumstances.

Decisions on a person’s care and support package, the amount they intend to defer, the security they intend to use and the terms of the agreement should only be taken following discussion between the local authority and the individual. Once agreement in principle has been reached between the local authority and the person, it is the local authority’s responsibility to put  the details agreed into a deferred payment agreement, taking the legal form of a contract between the local authority and the person.

The local authority should provide a hard copy of the deferred payment agreement to the person, and they should be provided with reasonable time to read and consider the agreement, including time for the individual to query any clauses and discuss the agreement further with the local authority.

The agreement must clearly set out all terms, conditions and information necessary to enable the person to ascertain his or her rights and obligations under the agreement.

These include:

  1. terms to explain how the interest will be calculated and that it will be compounded if it is to be added to the deferred amount;
  2. information on administrative costs the individual might be liable for;
  3. terms to explain how the adult may exercise his or her right to terminate the agreement, the process for and consequences of terminating the agreement and specify what notice should be given (see Section 16, Terminating the Agreement);
  4. terms to explain the circumstances in which the local authority might refuse to defer further fees (either when it is required to stop deferring, for example if the person has already deferred up to their ‘equity limit’, or when it has powers to stop deferring, such as when a person qualifies for local authority support in paying for their care; as set out in Section 6, How much can be Deferred and Section 2, Permission to Refuse a Deferred Payment Agreement);
  5. that the local authority will secure their debt either by placing a legal (Land Registry) charge against the property, or by some other means specified;
  6. a term requiring the local authority to provide the person with a written statement every six months and within 28 days of request by the person, setting out how much the person owes to the authority and the cost to them of repaying the debt;
  7. a term which explains that the maximum amount which may be deferred is the equity limit and that this is likely to vary over time;
  8. a term which requires the local authority to give the adult 30 days written notice of the date on which they are likely to reach the equity limit;
  9. a term which requires the adult to obtain the consent of the local authority for any person to occupy the property; and
  10. an explanation that the local authority will stop deferring its charges and making advances under a loan agreement if the person no longer receives care and support in a care home or supported living accommodation or if the local authority no longer considers that the adult’s needs should be met in such accommodation.

If the agreement is not for the deferral of charges due to the authority (a ‘loan’-style agreement), the agreement must also contain:

  1. a term to make clear that the authority will make advances of the loan to the adult in instalments;
  2. a term to make clear that the purpose of the loan is to pay for costs of care and support in a care home or supported living accommodation. This should explain:
    1. the consequences of any failure by the adult to pay those costs of care and support; and
    2. that the adult must inform the local authority if he or she no longer receives or intends to receive care in such accommodation.

The agreement should also stipulate:

  1. the value of any accrued or possible administrative charges, and where possible a breakdown of their calculation;
  2. the means of redress if either party feels the other has broken the terms of the agreement;
  3. the person’s responsibilities regarding maintenance and insurance of their home;
  4. the person’s responsibility to notify the local authority of any change to their income, home or care and support;
  5. the person’s responsibility to notify the local authority if they intend to rent or sell their property and if someone has gained or may gain a beneficial interest in their property;
  6. the local authority’s responsibility to give the person 30 days written notice if it intends to cease to defer charges (or make loan instalments) under the agreement;
  7. a clear explanation of the consequences of taking out a DPA for the person and their property, including anybody who may reside in the property;
  8. the equity limit of their security (as discussed above in the section entitled ‘how much can be deferred’) and the scope for this to change upon revaluation of the security used for the DPA;
  9. the process for varying any part of the agreement;
  10. the process by which the local authority can require a re-valuation of a person’s chosen form of security.

The local authority should ensure at a minimum that people sign or clearly and verifiably affirm they have received adequate information on options for paying for their care, that they understand how the DPA works and understand the agreement they are entering into; and that they have had the opportunity to ask questions about the contract. A term reflecting this should be included in the agreement itself.

The local authority will need to consider whether the deferred payment agreements they enter into are regulated credit agreements to which the Consumer Credit Act 1974 (CCA) and Financial Services and Markets Act 2000 (FSMA) apply.

The scope of ‘regulated credit agreements’ is set out in article 60B of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (RAO). A credit agreement is regulated unless exempt, and there are a number of exemptions in articles 60C to 60H of the RAO. It is likely that most DPAs will fall within such an exemption. If the agreement is regulated, it will need to comply with all applicable requirements of the CCA. In addition, the local authority will need a relevant permission from the Financial Conduct Authority (FCA), and to comply with the FCA’s rules and principles, unless the exclusion in article 72G of the RAO applies (if the credit agreement is within the scope of the Consumer Credit Directive FCA authorisation is required).

All deferred payment agreements will be subject to the Unfair Terms in Consumer Contracts Regulations 1999, so the terms will have to be written in plain, intelligible English and will not be binding if they are unfair to the borrowers. Local authorities will also have to ensure that they do not contravene the Consumer Protection from Unfair Trading Regulations 2008.

Under Section 79 of the Care Act, the local authority may delegate responsibility for deferred payment agreements to another body. This could potentially allow a number of local authorities to combine their collective resources and offer a regional solution tailored to the local conditions and the administrative burden they face. If the  local authority chooses to exercise their powers for delegation, the local authority must satisfy itself that the body taking on responsibility for DPAs is complying with all appropriate regulations and guidance (including but not limited to those governing deferred payments). Any and all duties in the Care and Support Statutory Guidance document, in the regulations and in the relevant sections of the Care Act apply equally to any delegated authority as they do to local authorities. The local authority should also seek feedback from people entering into DPAs to satisfy themselves that the service being provided meets the standards expected of the local authority. In the case of delegation of responsibility, the local authority remains ultimately responsible for (and liable for) the DPA.

16. The Local Authority’s Responsibilities whilst the Agreement is in Place

The local authority must at a minimum provide people with six monthly written updates of the amount of fees deferred, of interest and administrative charges accrued to date, and of the total amount due and the equity remaining in the home (the ‘equity limit’ discussed in Section 8, How much can be Deferred?). The local authority should also provide the person with a statement on request within 28 days. It may provide updates on a more frequent basis at its discretion. The update should set out the amount deferred during the previous period, alongside the total amount deferred to date, and should also include a projection of how quickly someone would deplete all equity remaining in their chosen form of security up to their equity limit.

The local authority should reassess the value of the chosen form of security once the amount deferred exceeds 50% of the security (and periodically thereafter), and adjust the equity limit and review the amount deferred if the value has changed.

The local authority may offer people a way to check their statement at any point in the year via an online facility.

The local authority may choose to develop advice and guidance around maintaining a home, renting, and income and also offer services/ products to help the person meet the requirements for maintenance and insurance, but cannot compel a person to take on their product. The local authority must accept reasonable alternative maintenance and insurance services. See Case Study: Deferred Payments Arrangements.

17. Contractual Responsibilities on the Individual whilst the Agreement is in Place

The deferred payment agreement sets out various contractual requirements on the individual as well as on the local authority.

If the local authority is exercising its right to require the adult to make a contribution from income, it should include in the legal agreement provisions requiring the person to notify the local authority of any changes in their income.

They must also notify the local authority of changes in their need for care and support, if those changes are ones which will mean that the authority must or is entitled to stop making further instalments under the agreement or to alter the amount of the instalments.

Similarly if the agreement has been entered into on the basis that  the adult’s property has not been disregarded for the purposes of the financial assessment in section 17 and it is a term of the agreement that the local authority will cease making or reduce the amount of instalments it makes, the agreement should require the person to inform the authority of changes which mean that the property may be disregarded.

The local authority should include in a contract provisions requiring someone to ensure that appropriate arrangements are in place to maintain their home whilst they are in care. In particular, that their home is maintained adequately, and require someone to have in place an arrangement for regular maintenance to take place.

The local authority should also require the person to have adequate insurance for their property. If their home is to be left empty for an extended period of time, the person will need to ensure their insurance covers this adequately and that any terms required by the insurer are met.

The local authority must include in a contract provisions which require the person to obtain the authority’s consent before allowing someone to move into the property after the agreement has been made. In these circumstances, the local authority may (if it is reasonable to do so) require written consent from the person which places the debt owed to the local authority above any beneficial interest they may accrue in the property.

In summary, when it has been decided by both the local authority and the individual that a deferred payment agreement is the appropriate step to take matters forward, a formal agreement is required. The Care and Support Statutory Guidance (9.74-9.84) provides a comprehensive checklist about the information that local authorities should gather for the contents of such agreements.

Local authorities must comply with Unfair Trading Regulations 1999 so the terms should be written in plain common sense English and will not be binding if the terms are unfair to the borrowers. The continuing obligations of the parties that remain in force for the duration of the agreement.

18. Termination of Agreement

A deferred payment agreement can be terminated in three ways:

  • at any time by the individual, or someone acting on their behalf, by repaying the full amount due (this can happen during a person’s lifetime or when the agreement is terminated through the DPA holder’s death);
  • when the property (or form of security) is sold and the authority is repaid [see Note 5];
  • when the person dies and the amount is repaid to the LA from their estate.

Note 5

In the case that a DPA is agreed on the basis of a form of security other than property, local authorities will need to make provision in the agreement for conclusion of the DPA in the event that the given security is disposed of/comes to fruition.

All three scenarios for the termination of the agreement are discussed below, alongside the various options for repayment. On termination, the full amount due (including care costs, any interest accrued and any administrative or legal fees charged) must be paid to the local authority.

If a person decides to sell their home, they should notify the local authority during the sale process. They will be required to pay the amount due to the local authority from the proceeds of the sale, and the local authority will be required to relinquish the charge on their property.

A person may decide to repay the amount due to the local authority from another source, or a third party may elect to repay the amount due on behalf of the individual. In either case, the local authority should be notified of the person’s/the third party’s intention in writing, and the local authority must relinquish the charge on the property on receipt of the full amount due.

If the deferred payment is terminated due to the person’s death, the amount due to the local authority must be either paid out of the estate or paid by a third party. A person’s family or a third party may wish to settle the debt to the local authority by other means of repayment (as may be the case if the family wanted to avoid having to sell the property or means of security), and the local authority must accept an alternative means of payment in this case, provided this payment covers the full amount due to the local authority.

The executor of the will or administrator of the estate can decide how the amount due is to be paid; either from the person’s estate (usually via the sale of the house or potentially via a life assurance policy) or from a third party source.

A local authority should wait at least two weeks following the person’s death before approaching the executor with a full breakdown of the total amount deferred (but a family member or the executor can approach the local authority to resolve the outstanding amount due prior to this point).

Responsibility for arranging for repayment of the amount due (in the case of payment from the estate) falls to the executor of the will.

Interest will continue to accrue on the amount owed to the local authority after the individual’s death and until the amount due to the local authority is repaid in full.

If terminated through a person’s death, the amount owed to a local authority under a deferred payment agreement falls due 90 days after the person has died. After this 90 day period, if a local authority concludes active steps to repay the debt are not being taken, for example if the sale is not progressing and a local authority has actively sought to resolve the situation (or the local authority concludes the executor is wilfully obstructing sale of the property), the local authority may enter into legal proceedings to reclaim the amount due to it. Further information on debt recovery is included at Annex D.

In whichever circumstance an agreement is terminated, the full amount due to the local authority must be repaid to cover all costs accrued under the agreement, and the person (and / or the third party where appropriate) must be provided with a full breakdown of how the amount due has been calculated. Once the amount has been paid, the local authority should provide the individual with confirmation that the agreement has been concluded, and confirm (where appropriate) that the charge against the property has been removed.

In summary, when the agreement is terminated on account of the death of the person, it is advised that the local authority should not approach the executors about the repayment of the deferred sum of the agreement for two weeks after the person’s death.

Interest continues to accumulate under the deferred agreement until the sum is repaid fully. Ninety days after the death of the person, the sum of the full amount accrued should be repaid to the local authority. Where the local authority believes the monies are unlikely to be repaid under the agreement, the local authority may begin proceedings to recover the monies under the agreement.

19. Further Reading

19.1 Relevant information

Chapter 9, Deferred Payment Arrangements, Care and Support Statutory Guidance (Department of Health and Social Care)

See also Deferred Payment Agreement Case Studies.

Appendix 1: Care and Support (Deferred Payment) Amendment Regulations 2017

The Care Support (Deferred Payment) Regulations 2014 are amended by the Deferred Payments Regulations 2017 (“amended regulations”) which changes the qualifying criteria.

At regulation 2 2 (a) (ii) of the amended regulations it states:

“a local authority is required to enter into a deferred payment agreement with an adult if an adult’s needs for care and support…are not being or going to be met  by the local authority under section 18 of the Care Act  and are needs that the local authority considers it would be required to meet under that section by the provision of accommodation in a care home but for the fact that the local authority is satisfied that the adult’s financial resources are above  the financial limit.”

The same provision is inserted into Regulation 3 which deals with circumstances when a local authority is permitted into a deferred payment agreement

At Regulation 3 (1) (a)(ii) of the amended regulations it states,

“A local authority is permitted to enter into a deferred payment agreement with an adult if.. the adult’s needs for care and support ….are not being or going to be met by the local authority under section 18 and are needs that the local authority considers it would be required to meet under that section by the provision of accommodation in a care home but for the fact that the local authority is satisfied that the adult’s financial resources are above the financial threshold.”

The original Care Act legislation included a requirement that local authorities were meeting or going to meet that individual’s needs or believed they would meet their needs if asked.

Local authorities are not required to provide or arrange care home for persons with over £23,250 of assets (self-funders) under section 18 of the Care Act. This generally meant a local authority generally only had to offer a deferred payment agreement if they were meeting or going to meet an adult’s needs under section 19 of the Care Act or considered that they would be asked to do so.

This was not the intended effect of the legislation because it did not protect self-funders from having to sell their home in their life time to pay for their care.

The changes to the legislation and regulations mean that local authorities will have to enter into a deferred payment agreement with a self-funder if

  • the local authority would be required to meet their needs but for the fact that they have assets over the upper limit, and
  • they meet the other criteria for a mandatory deferred payment agreement.

Local authorities will not, however, be required to meet or fund the needs of a self-funder.

It also does not mean under the new regulations local authorities have to enter into a deferred agreement with an individual who has more than £23,250 other than their main or only home.

It simply means a local authority cannot refuse a loan type of deferred payment agreement to an individual who meets all the mandatory criteria for the deferred payment agreement as set out in Regulation 2 (1) of the Regulations which includes agreeing to the terms and conditions of the agreement.

Prior to the revised regulations, there was no legal requirement on local authorities to enter into a deferred payment agreement unless they had chosen to meet a self-funder’s needs or believed that they would choose to do so, if asked.  As a consequence, local authorities had a choice to exercise before a self-funder met the criteria for a mandatory deferred payment agreement as set out in Regulation 2 (1) of DPA Regulations and the individual became entitled to the benefit of the scheme. This was not the intention of the original deferred payment legislation. It meant that some individuals who were intended to qualify were being denied a loan type deferred payment agreements.

The amended regulations will mean that all individuals who were originally intended to qualify for mandatory deferred payment agreement will now qualify under law which was the original policy intention of the legislators. It also means that local authorities cannot refuse loan type deferred payment agreements where an individual meets the criteria and requests a mandatory deferred payment agreement, as set out in Regulation 2 (1) of DPA Regulations

1. Charges

Local authorities can charge different administration fees for loan type as opposed to traditional deferred payment agreements. The local authorities are permitted to charge for its costs of administration for such an agreement. The costs are to include costs reasonably incurred by the local authority in agreeing, maintaining and terminating the agreement. The costs to the local authority are different for a loan type agreement rather than a traditional agreement. The local authority may charge respective adults different amounts but subject to what is said about average costs they may not charge either adult more than the actual costs incurred in respect of the agreement. All administration fees should be reasonable and must be no more than the costs incurred and local authorities must make individuals aware of the administration fees that are likely to be charged before entering into such agreement.

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Audio & Quick Read Summary

CQC Quality Statements

Theme 1 – Working with People: Assessing needs

We statement

We maximise the effectiveness of people’s care and treatment by assessing and reviewing their health, care, wellbeing and communication needs with them.

What people expect

I have care and support that is coordinated, and everyone works well together and with me.

I have care and support that enables me to live as I want to, seeing me as a unique person with skills, strengths and goals.

KNOWSLEY SPECIFIC INFORMATION

Paying for Care (Knowsley Council) 

1. Introduction to Charging and Financial Assessment

1.1 Introduction and principles

The Care Act 2014 provides a single legal framework for charging for care and support. It enables a local authority to decide whether or not to charge a person when it is arranging to meet a person’s care and support needs or a carer’s support needs.

Where a local authority arranges care and support to meet a person’s needs, it may charge the adult, except where the local authority is required to arrange that care and support free of charge. The overarching principle is that people should only be required to pay what they can afford. People will be entitled to financial support based on a means test and some will be entitled to free care.

The charging framework is, therefore, based on the following principles that local authorities should take into account when making decisions:

  • ensure that people are not charged more than it is reasonably practicable for them to pay;
  • be comprehensive, to reduce variation in the way people are assessed and charged;
  • be clear and transparent, so people know what they will be charged;
  • promote wellbeing, social inclusion, and support the vision of personalisation, independence, choice and control;
  • support carers to look after their own health and wellbeing and to care effectively and safely;
  • be person focused, reflecting the variety of care the variety of options available to meet their needs;
  • apply the charging rules equally so those with similar needs or services are treated the same and minimise anomalies between different care settings;
  • encourage and enable those who wish to stay in or take up employment, education or training or plan for the future costs of meeting their needs to do so; and
  • be sustainable for local authorities in the long term.

Alongside this, local authorities should ensure there is sufficient information and advice available in a suitable format for the person’s needs, in line with the Equality Act 2010 (in particular for those with a sensory impairment, with learning disabilities or for whom English is not their first language), to ensure that they or their representative are able to understand any contributions they are asked to make. Local authorities should also make the person or their representative aware of the availability of independent financial information and advice (see Financial Advice and Information chapter).

1.2 Possible decisions

Following a financial assessment, there are three possible decisions a local authority could make:

  • the local authority will provide no financial support. The person or carer might be self-funding, meaning they meet the full cost of their needs;
  • the local authority will provide some financial support, but not enough to cover the full personal budget amount. In this case, the person or carer would be expected to contribute the difference;
  • the local authority will provide full financial support. In this case, the person or carer will not have to make any contribution towards the cost of their personal budget.

1.3 Common issues for charging

Local authorities have a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs. In all cases, a local authority has the discretion to choose whether or not to charge under the Care Act, following a person’s needs assessment. If it decides to charge, it must follow the Care and Support (Charging and Assessment of Resources) regulations and have regard to the guidance.

The detail of how to charge is different depending on whether someone is receiving care in a care home, or their own home, or another setting. However, there are some common elements.

Where a local authority chooses to charge, regulations determine the maximum amount a local authority can charge a person.

In care homes, where the financial assessment identifies that a person’s resources exceed the capital limits, the local authority is precluded from paying towards the costs of care. Therefore, local authorities should develop and maintain a policy setting out how they will charge people in settings other than care homes. In deciding what it is reasonable to charge, local authorities must ensure that they do not charge more than is permitted under the regulations and as set out in the Care and Support Statutory Guidance.

The guidance and the supporting annexes assume that the appropriate assessment of needs has been carried out and the local authority has chosen to charge (see Assessment chapter). It therefore provides detail on how to conduct the financial assessment for that person. The local authority has no power to assess couples or civil partners according to their joint resources. Each person must therefore be treated individually.

Where a person lacks capacity, they may still be assessed as being able to contribute towards the cost of their care. However, a local authority must put in place policies regarding how they communicate, how they carry out financial assessments and how they collect any debts that take into consideration the capacity of the person as well as any illness or condition. Local authorities are expected to use their social work skills both to communicate with people and also to design a system that works with, and for, very vulnerable people. Sometimes it is useful to consult with and engage with family members; however, family members may not have the legal right to access the person’s bank accounts. Where possible, local authorities should work with someone who has the legal authority to make financial decisions on behalf of a person who lacks capacity. If there is no such person, then an approach to the Court of Protection is required.

The charging rules also apply equally to people in prison. Whilst prisoners have restricted access to paid employment and benefits (and earnings in prison are to be disregarded for the purposes of the financial assessments), any