April 2020: Changes in relation to the Coronavirus Act 2020
The Care Act places a duty on the local authority to meet eligible care and support needs, or the support needs of a carer. The Care Act Easements replace the duty to meet eligible care and support needs with a power to prioritise the most pressing needs.
The Care Act easements allow the local authority to no longer do assessments, check that an adult’s needs are eligible or conduct care and support plan reviews as required under the Care Act. However, there is an expectation in the Coronavirus Act that the local authority will do everything it can to continue to meet an adult’s needs as originally set out in the Care Act. Guidance will be given by the local authority to its staff as to when it will not be able to meet the duties under the Care Act due to the impact COVID-19 is having on its staffing and resources. It will also inform staff as to when those pressures have eased and normal Care Act duties are to be resumed. See Annex B: Guidance on streamlining assessments and reviews and Annex C: Prioritisation process, Care Act easements: guidance for local authorities (Department of Health and Social Care)and Assessments under the Coronavirus Act 2020 chapter.
CARE ACT 2014
The Act requires the local authority to determine whether a person has eligible needs after a needs assessment or carer’s assessment has been completed.
Regulations set out:
- eligibility criteria, including minimum level of eligibility at which the local authority must meet care and support needs;
- circumstances establishing entitlement to public care and support for adults who need care;
- conditions which must be met regarding the duty on the local authority to meet eligible needs;
- provides broad power for the local authority to meet care and support needs in circumstances where a duty to meet needs (as above) does not arise;
- allows the local authority to temporarily bypass carrying out assessment of needs, where care and support is needed urgently;
- establishes legal obligation to meet carer’s needs for support;
- provides that the local authority may not meet care and support needs of adults subject to immigration control solely because they are ‘destitute’ or because of the physical or anticipated physical effects of being destitute (see also No Recourse to Public Funds).
To be provided with services the local authority must establish that not to do so would result in a breach of the person’s human rights, or there are needs that have arisen for other reasons (for example a disability rather than solely destitution).
In meeting an adult’s or carer’s needs, the local authority may not provide healthcare services which are NHS responsibilities.
The Act sets out steps the local authority must take after carrying out needs assessment or carer’s assessment (and financial assessment where relevant).
- 1. Introduction
- 2. National Eligibility Threshold for People with Care and Support Needs
- 3. Needs Met by Carers
- 4. National Eligibility Threshold for Carers with Support Needs
- 5. What the Local Authority must do about the Decision regarding Eligibility
The national eligibility criteria sets a minimum threshold for adult care and support needs and carer support needs that the local authority must meet. All local authorities must comply with this national threshold. Authorities can also decide to meet needs that are not deemed to be eligible, if they choose to do so.
The national eligibility threshold provides clarity on what level of need is eligible, to help the local authority to decide whether the earlier provision of information and advice (see Information and Advice) or preventive services (see Preventing, Delaying or Reducing Needs) would delay the development of needs that meet the eligibility criteria or whether longer term care and support might be needed. It should also help the adult needing care or their carer to think more broadly about what support might be available in the local community or through their support network, to meet their needs and support the outcomes they want to achieve.
2. National Eligibility Threshold for People with Care and Support Needs
The eligibility threshold for adults with care and support needs is set out in the Care and Support (Eligibility Criteria) Regulations (2014). It is based on how an adult’s needs affect their ability to achieve relevant outcomes and how this impacts on their wellbeing (see Promoting Wellbeing).
2.1 Eligibility: Three Conditions to be met
All of the following three conditions have to be met for an adult who has care and support needs in order for them to be considered as having eligible needs:
- The adult’s needs arise from or are related to a physical or mental impairment or illness;
- As a result of these needs the adult is unable to achieve two or more of the specified outcomes (see below);
- As a consequence of being unable to achieve these outcomes there is, or there is likely to be, a significant impact on the adult’s wellbeing.
2.2 Eligibility: Interpreting the criteria
Condition 1: The adult’s needs arise from or are related to a physical or mental impairment or illness
The adult’s needs for care and support are due to physical, mental, sensory, learning or cognitive disabilitie or illness, substance misuse or brain injury and are not caused by other circumstantial factors. A formal diagnosis of the condition is not required. The judgement about the presence of a condition is based on the assessment that is undertaken (see Assessment).
Condition 2: The Eligibility Regulations set out a range of outcomes. The local authority must consider whether the adult is unable to achieve 2 or more of these outcomes when making the eligibility determination.
Below are examples of how local authorities should consider each outcome set out in the Eligibility Regulations (this is not an exhaustive list) when determining the adult’s eligibility for care and support:
- Managing and maintaining nutrition: the adult has access to food and drink to maintain nutrition and is able to prepare and consume the food and drink;
- Maintaining adult hygiene: the adult is able to wash themselves and launder their clothes;
- Managing toilet needs: the adult is able to access and use a toilet and manage their toilet needs;
- Being appropriately clothed: the adult is able to dress themselves and to be appropriately dressed, for instance in relation to the weather;
- Being able to make use of the home safely: the adult is able to move around the home safely, which could include, for example, getting up steps, using kitchen facilities or accessing the bathroom. This also includes the immediate environment around the home such as access to the property, for example, steps leading up to the home;
- Maintaining a habitable home environment: the condition of the adult’s home is sufficiently clean and maintained to be safe. A habitable home is safe and has essential amenities, such as water, electricity and gas;
- Developing and maintaining family or other adult relationships: the adult is not lonely or isolated. They are able to maintain the adult relationships they have and/or develop new relationships;
- Accessing and engaging in work, training, education or volunteering: the adult has an opportunity to apply themselves and contribute to society through work, training, education or volunteering, subject to their own wishes in this regard. This includes the physical access to any facility and support with the participation in the activity;
- Making use of necessary facilities or services in the local community including public transport and recreational facilities or services: the local authority should consider the adult’s ability to get around in the community safely and consider their ability to use such facilities as public transport, shops or recreational facilities when considering the impact on their wellbeing. Local authorities do not have responsibility for the provision of NHS services such as patient transport, however they should consider needs for support when the adult is attending healthcare appointments;
- Carrying out any caring responsibilities the adult has for a child: the adult is able to carry out caring responsibilities they have for a child/ren.Being unable to achieve an outcome (as above) includes any of the following circumstances, where the adult is:
- unable to achieve the outcome without assistance: this includes where the adult is unable to do so even when assistance is provided. It also includes when the adult needs prompting. For example, some people may be physically able to wash but need reminding about the importance of personal hygiene;
- able to achieve the outcome without assistance but doing so causes, or is likely to cause, the adult significant pain, distress or anxiety: for example, an older adult with severe arthritis may be able to prepare a meal, but doing so leaves them in severe pain and unable to eat the meal;
- able to achieve the outcome without assistance, but doing so endangers or is likely to endanger the health or safety of the adult, or of others: for example, if the health or safety of another member of the family is endangered when the adult attempts to complete a task or an activity without support;
- able to achieve the outcome without assistance but takes significantly longer than would normally be expected: for example, an adult with a physical disability who is able to dress themselves in the morning, but it takes a long time to do this, leaves them exhausted and prevents them from achieving other outcomes.
Condition 3: As a consequence there is, or there is likely to be, a significant impact on the adult’s wellbeing
The term ‘significant’ is not defined by the Eligibility Regulations and therefore has its everyday meaning in relation to the adult’s needs and their consequent inability to achieve the relevant outcomes that have important consequences for their daily lives, their independence and their wellbeing (see Promoting Wellbeing). In deciding the impact on an adult’s wellbeing, the adult’s needs have to be understood in the context of what is important to them. Needs may affect different people differently because what is important to an individual’s wellbeing varies; circumstances that create a significant impact on the wellbeing of one adult may not have the same effect on another.
The local authority must determine how the adult’s inability to achieve the outcomes above impacts on their wellbeing. Where the adult is unable to achieve more than one of the outcomes, the local authority does not need to consider the impact of each individually, but should consider whether the cumulative effect of being unable to achieve those outcomes is one of a ‘significant impact on wellbeing’. In doing so, local authorities should also consider whether:
- the adult’s inability to achieve the outcomes above impacts on at least one of the areas of wellbeing (see Promoting Wellbeing) in a significant way;
- the effect of the impact on a number of the areas of wellbeing mean that there is a significant impact on the adult’s overall wellbeing.
Below is the Eligibility Decision Process Table which illustrates the interplay of the three conditions (above), the outcomes listed in the eligibility regulations and the wellbeing principle, which is broken down into areas of wellbeing:
|1. Needs||2. Outcomes||3. Wellbeing|
|The adult’s needs arise from or are related to a physical or mental impairment or illness.||As a result of the needs, the adult is unable to achieve two or more of the following:
||As a consequence, there is or is likely to be a significant impact on the adult’s wellbeing, including the following:
There is no hierarchy of needs or of the areas of wellbeing.
2.3 Fluctuating needs
People with fluctuating needs may have needs which are not apparent at the time of the assessment, but may have arisen in the past and are likely to arise again in the future. Therefore the local authority must consider an individual’s needs over an appropriate period of time to ensure that all of their needs have been accounted for when eligibility is being determined. Where fluctuating needs are apparent, this should be included in the care plan, detailing the steps local authorities will take to meet needs in circumstances where these fluctuate. For example, an adult with a mental illness, which has been managed in the past eight months, but which could deteriorate if circumstances in the adult’s life change. In such situations, the nature of the adult’s needs over the past year should be considered in order to get a complete picture of the adult’s level of need.
3. Needs Met by Carers
The decision about eligibility is based on the adult’s needs and how these impact on their wellbeing. Account is only taken of whether the adult has a carer or what needs may be met by a carer, after the eligibility decision has been made at the point when a care and support plan is prepared (see Care and Support Planning). At that point, if the adult does have a carer, the care they are providing will be taken into account when considering whether needs have to be met. Eligible needs that are being met by a carer do not have to be met but those needs are recognised and recorded as eligible during the assessment process (see Assessment). This is to ensure that should there be a breakdown in the caring relationship, the needs are already identified as eligible and steps can be taken to meet them without further assessment.
4. National Eligibility Threshold for Carers with Support Needs
Carers can be eligible for support in their own right. The national eligibility threshold for carers is also set out in the Care and Support (Eligibility Criteria) Regulations (2014). The threshold is based on the impact a carer’s need for support has on their wellbeing.
4.1 Eligibility: Three Conditions to be met
All of the following three conditions need to be met for a carer with support needs to be considered as having eligible needs:
- The needs arise as a consequence of providing necessary care for an adult;
- The effect of the carer’s needs is that any of the circumstances specified in the Eligibility Regulations apply to the carer;
- As a consequence of that fact there is, or there is likely to be, a significant impact on the carer’s wellbeing.
4.2 Eligibility: Interpreting the criteria
Condition 1: The needs arise as a consequence of providing necessary care for an adult
The local authority must consider whether the carer’s need for support arises because they are providing care to an adult. They can be eligible for support whether or not the adult for whom they care has eligible needs. The decision about a carer’s eligibility is based on the carer’s needs and how these impact on their wellbeing.
The determination should be made without consideration of whether the adult for whom the carer cares, has eligible needs.
The carer must also be providing care that is necessary. If the carer is providing care and support to meet needs that the adult is capable of meeting themselves, the carer may not be providing necessary support. In such circumstances, information and advice should be provided to the adult and carer about how the adult can use their own strengths or services available in the community to meet their needs.
Condition 2: Consideration has to be given to whether the carer’s physical or mental health is deteriorating or is at risk of doing so or whether the carer is unable to achieve any of the outcomes that may apply.
Being unable to achieve outcomes, includes circumstances where the carer:
- is unable to achieve the outcome without assistance. This includes where the carer would be unable to achieve an outcome even if assistance were provided. A carer might, for example, be unable to fulfill their parental responsibilities unless they receive support in their caring role
- is able to achieve the outcome without assistance, but doing so causes or is likely to cause significant pain, distress or anxiety. A carer might for example be able to care for the adult and undertake fulltime employment, but if doing both, this causes the carer significant distress, the carer should not be considered able to engage in employment
- is able to achieve the outcome without assistance but doing so is likely to endanger the health or safety of the carer or any adults or children for whom the carer provides care. A carer might for example be able to provide care for their family and deliver necessary care for the adult, but, where this endangers the adult with care and support needs, for example, because the adult receiving care would have to be left alone while other responsibilities are met, the carer should not be considered able to meet the outcome of caring for their family
The Eligibility Regulations set out a range of outcomes. Local authorities must consider whether the carer is able to achieve these outcomes or if due to the nature of their needs they are unable to achieve any of the outcomes. The carer will have eligible needs met if they are unable to achieve any of these outcomes and as a result there is, or there is likely to be, a significant impact on their wellbeing.
To be eligible, a carer must be unable to achieve any of the following outcomes:
|Criteria||Examples of how to interpret the criteria|
|(i) Carrying out any caring responsibilities the carer has for a child||Any parenting or other caring responsibilities the carer has for a child in addition to their caring role for the adult. For example, the carer might be a grandparent with caring responsibilities for their grandchildren while the grandchildren’s parents are at work.|
|(ii) Providing care to other persons for whom the carer provides care||Any additional caring responsibilities the carer may have for other adults. For example, a carer may also have caring responsibilities for a parent in addition to caring for the adult with care and support needs.|
|(iii) Maintaining a habitable home environment||Whether the condition of the carer’s home is safe and an appropriate environment to live in and whether it presents a significant risk to the carer’s wellbeing. A habitable home should be safe and have essential amenities such as water, electricity and gas.|
|(iv) Managing and maintaining nutrition||Whether the carer has the time to do essential shopping and to prepare meals for themselves and their family.|
|(v) Developing and maintaining family or other significant personal relationships||Whether the carer is in a position where their caring role prevents them from maintaining key relationships with family and friends or from developing new relationships where the carer does not already have other personal relationships.|
|(vi) Engaging in work, training, education or volunteering||Whether the carer can continue in their job, and contribute to society, apply themselves in education, volunteer to support civil society or have the opportunity to get a job, if they are not in employment.|
|(vii) Making use of necessary facilities or services in the local community||Whether the carer has an opportunity to make use of the local community’s services and facilities and for example consider whether the carer has time to use recreational facilities such as gyms or swimming pools.|
|(viii) Engaging in recreational activities||Local authorities should consider whether the carer has leisure time, which might for example be some free time to read or engage in a hobby.|
Condition 3. Wellbeing
The third condition that must be met is that the carer’s needs and their inability to achieve the outcomes above present a significant impact on the carer’s wellbeing.
‘Wellbeing’ is defined by referring to examples of specific areas in Section 1 of the Care Act (see Promoting Wellbeing).
In doing so, local authorities should consider whether there is or is likely to be a significant impact on the carer’s wellbeing, including:
- personal dignity (including treatment of the individual with respect);
- physical and mental health and emotional wellbeing;
- protection from abuse and neglect;
- control by the individual over day-to-day life (including over care and support provided and the way it is provided);
- participation in work, education, training or recreation;
- social and economic wellbeing;
- domestic, family and personal relationships;
- suitability of living accommodation;
- the individuals contribution to society.
The term ‘significant’ is not defined by the Regulations, and must therefore be understood to have its everyday meaning. The local authority will have to consider whether the carer’s needs and their inability to achieve the outcomes will have an important, consequences for their daily lives, independence and wellbeing.
In making this judgment, the local authority should see the carer’s needs in the context of what is important to them. The impact of needs may affect different carers in different ways, because what is important to the individual’s wellbeing may not be the same in all cases..
When considering the type of needs a carer may have, local authorities should note that there is no hierarchy of needs or of the areas of wellbeing (see Promoting Wellbeing)
4.3 Fluctuating needs
Carers with fluctuating needs may have needs which are not apparent at the time of the assessment, but may have arisen in the past and are likely to arise again in the future. Therefore the individual’s needs must be considered over an appropriate period of time to ensure that all of their needs have been accounted for when the eligibility is being determined.
Where fluctuating needs are apparent, these should be included in the care plan, detailing the steps local authorities will take to meet needs in circumstances where needs fluctuate.
For example, a carer could be caring for an adult with a mental illness, who has managed their condition well in the past eight months, but who could deteriorate if circumstances in the adult’s life change.
In such situations, consideration must be given to how the carer’s needs may change as a result of the fluctuation in the needs of the person they are caring for. Authorities must get a complete picture of the carer’s level of need over an appropriate period.
The level of a carer’s need can also fluctuate irrespective of whether the needs of the adult for whom they care, fluctuate. For example, if the carer is a parent of school children, they may not have the same level of need for support during term time as during school holidays.
5. What the Local Authority must do about the Decision regarding Eligibility
When a decision has been made about eligibility, a copy of the decision is provided to the adult to whom the decision applies, whether that is an adult with care and support needs, or a carer with support needs.
Where an adult is found to have no eligible needs, information and advice are provided on what can be done to meet or reduce the needs that remain (for example, what support might be available in the community to help the adult or carer) and to prevent or delay the development of needs in the future. This information and advice is tailored to the needs the adult has, with the aim of delaying deterioration and preventing future needs, as well as reflecting the availability of local support (see Preventing, Reducing or Delaying Needs and Information and Advice).
If an adult has eligible needs:
- An agreement should be reached with them about which of their needs they would like the local authority to meet. The adult may not want to have local authority support in relation to all their needs. They may intend to arrange alternative services themselves to meet some needs. Others may not want the local authority to meet any of their needs, having approached the authority only for the purpose of deciding whether they have eligible needs;
- Consideration should be given as to how the adult’s needs may be met. This does not replace or pre-empt the care and support planning process (see Care and Support Planning), but is an early consideration of the potential support options in order to determine whether some of those may be services for which the local authority makes a charge. Where that is the case, the local authority carries out a financial assessment (see Charging and Financial Assessment);
- It is established whether they meet the residence requirement (see Ordinary Residence). This applies differently to adults with care and support needs and to carers with support needs. In the case of an adult, they must be ordinarily resident in the local authority’s area. In the case of a carer, the adult for whom they provide care must be ordinarily resident in the authority’s area. This is because a carer’s needs are met by the local authority where the adult with the need for care and support lives, not the authority where the carer lives, if they live elsewhere.