Carers' EligibilityApril 2015
ADASS South West England
Carers' Eligibility
Report
April 2015
1 Institute of Public Care
Carers' EligibilityApril 2015
ADASS South West England
Carers' Eligibility
Report
1Introduction
A Carers Eligibility Workshop commissioned by ADASS in the South West for local authorities in that region took place on 29 April 2015 at Bishops Hull House, Taunton. It attracted 29 participants from 13 council areas. The objectives of the workshop were:
To develop understanding of the Care Act eligibility framework relating to carers
To identify key principles involved in applying the eligibility criteria
To have practical opportunity to apply criteria to case scenarios
To identify key learning points that can be shared with colleagues across the region
2Context
For the 60% of us that at one stage or another will be a carer, there are clear benefits that come from the Care Act:
The right not just to assessment but also to an eligibility determination and to a service
The council’s obligation to supply information and advice, and to signpost
The replacement of restrictive terms from ‘old’ legislation like ‘regular’ and ‘substantial’
The Act will also boost provision of preventative and well-being services in local markets.
There are though, huge challenges that relate to funding and the concern that unless the Act is properly funded it will alleviate little of the burden on unpaid carers. We have to take into account the effective 26% reduction (£3.5b) in adult social care over 4 years – 12% reduction in cash, 14 % increase in demand. It would seem that austerity will remain with us for some time to come. New rights come, of course, at a cost, and some councils are going down the route of charging carers, a trend that may gather momentum should demand for carer support outstrip resources available. Many have provision to charge in their policies. Lots are reviewing charging approaches.
A second challenge is that carers and practitioners might continue to think there is no point in a full assessment – 2013 research from York University found practitioners routinely offered full assessment but this often declined and practitioners did not pursue the issue.
There are also issues relating to how eligibility arrangements will be applied and how arbitrary application of criteria will be. These were the focus of the workshop.
3Key Issues
At the start of the workshop participants were asked to identify what are the key issues for them on carer eligibility. ADASS had indicated the concern of Directors in the region to maximise consistency and this focus was recognised by people at the workshop. Other key issues raised were:
What ‘meeting eligible needs’ means – what does ‘good’ look like?
Comparing and contrasting Care Act requirements with old provision
Implications of eligibility for self-funders
Value of using agreed wording across region
How best to avoid legal challenge?
Prevention: how might ‘pausing assessments’ apply to carers? How to incorporate all tiers of prevention?
How to balance meeting well-being of individual with existing resources? How to meet ‘unmeetable’ expectations? Securing resources to ensure that carers needs are an ‘equal’ priority?
Issues involved in delegating decision-making about eligibility
Dealing with the ‘maintaining a habitable home environment’ outcome area? How to establish impact of this domain on the caring role? Does it include cleaning?
What is ‘necessary care’? Definitions? How to address when cared for person does not want re-ablement?
What is ‘significant impact’?
Where cared for person is in residential care might carer still be eligible?
Where cared for person discharged from service – might carer still be eligible?
Where does entitlement to respite care end? How much should people have? Application to self-funders?
Should carer be given an indicative personal budget before the support plan?
Does our local ‘matrix’ work as well as it should?
4Your starter for 10
Small groups looked at a number of brief scenarios reflecting issues relating to carer eligibility. They were asked to reach speedy conclusions - and where unable to reach a decision on the information provided, to indicate what else they would need to know. The scenarios were:
- Fred travels 200 miles to spend a few hours chatting with his aunt every couple of months. She appreciates his visit. Is this ‘necessary’ care?
- Carer prepares breakfast for neighbour who prepares other meals herself. Is this necessary care?
- Caring for my uncle at weekends means I have no time to redecorate my house – so can I ask for help with hiring a decorator? Is this an allowable ‘outcome’?
- Carer is a volunteer from the local church – can such a carer be eligible?
- A home carer from a private agency supports Mrs. X five mornings per week, then goes in at weekends – in her own time, and without pay – when no formal care is contracted. Might she be eligible for support?
- Mrs. Y has support from a neighbour who is a single parent to a very demanding child and – in addition – is trying to study for an OU degree. She needs support to do all she needs to do, and would probably need support even without Mrs. Y. Might she be eligible for support?
- Carer has suffered from chronic arthritis for many years. She has only known and supported Mr Z for 6 months. Her health is getting in the way of care. Would she meet the deterioration in physical health criterion?
- Carer gets tired because she cares many hours a week for her mother, but nevertheless gets a real sense of fulfilment from this. Can care be seen as having an impact on her well being?
- Carer calls in on Mr B each evening to make sure that he is ready for bed. She then has to walk home through dark city streets. She does not feel safe doing this and want money to pay for a taxi. Does she meet the outcomes criterion?
5Eligibility within Care Act 2014
There are three key legal ‘offers’ for carers in the Care Act 2014:
Section 10 of Act:
Creates a single duty to undertake a carer’s assessment on the basis of appearance of need for support. There is no longer a need to provide substantial amount of care on a regular basis. So the threshold for assessment is lower
Section 20 of Act:
Creates a legal obligation to meet a carer’s needs for support so long as the cared for person is ordinarily resident in the Local Authority area. This new entitlement replaces the previous discretionary power.
Section 13of Act:
Requires councils to determine if someone has eligible needs following assessment. It provides for regulations, which set out eligibility criteria. This requirement is new in law though not in policy. This requirement is our focus here.
A carer meets the eligibility criteria if:
His/her needs are caused by providing necessary care for an adult
AND, as a result:
His/her health is at risk
Or he/she is unable to achieve specified outcomes
AND, as a consequence, there is or is likely to be a significant impact on the carer’s well-being
68 steps
We broke these three elements down into an 8-step approach:
- Is this person a carer?
- Does the carer have a need for support?
- Is the carer providing necessary care?
- Do needs relate to carer providing this care?
- Is the carer’s physical or mental health – as a result – deteriorating or at risk of deterioration?
- Is the carer – as a result – unable to achieve one or more of the outcomes designated in regulations?
- As a consequence is there, or is there likely to be, an impact on the carer’s well being?
- Is this impact significant
6.1Is this person a carer?
Carers covered by the Care Act are adults who provide or intend to provide care for someone – an adult 18+, or a disabled young person in transition. Or it could be a young carer of an adult who is in transition.
Any level of care might be involved and it no longer has to be regular or substantial. But you might want to ask how realistic it is – as in the quiz – where a carer visits once in a blue moon.
The carer would not usually be a volunteer or paid/contracted person (see Guidance paras 6.16-17). But councils do have the discretion to regard such people as carers for eligibility purposes and may do so where, for example, a paid carer is also providing paid care, say, at weekends; and where volunteers such as church visitors are providing support etc.
6.2Does the carer have a need for support?
Reminds us of need to assess first and not to assume that the carer has needs. Where assessment indicates that the carer has a need for support now or in future you must consider eligibility
Carer needs may fluctuate just like needs of the person cared for; this may relate, say, to their own health, or other commitments. Hence it is important to consider an individual’s needs over an appropriate period of time to ensure that these have all been accounted for when eligibility is being determined.
6.3Is the carer providing necessary care?
Is this care? Care can be practical + emotional – it is not defined beyond this there are suggestions that it can incorporate ‘care about’ as well as ‘care for’. But what are the boundaries to this? N.B. the carer must be willing to provide + continue to provide care
Is this necessary care? Guidance para 6.124says: “The carer must also be providing “necessary” care. If the carer is providing care and support for needs which the person cared for is capable of meeting themselves, the carer may not be providing necessary support. In such cases, local authorities should provide information and advice to the adult and carer about how the adult can use their own strengths or services available in the community to meet their needs”.
Guidance and Skills for Care/SCIE training material suggest you might want to check.
- What would be impact if care stopped?
- Could they provide this care for themselves? If yes, provide information and advice as appropriate.
- Are required activities ones that the individual requiring support should be able to carry out as part of normal daily life but is unable to do so?
- Is the carer over-involved and supplying support that is not strictly necessary? The person cared for may have become used to support that he or she does not really need.
- Is carer duplicating care already supplied by others because, e.g., the carer is anxious about the person cared for, or does not feel that formal support is provided at sufficient frequency, for long enough, or with an appropriate caring ethos?
Can include care provided to support needs that are not eligible. Person cared for does not have to have eligible needs. E.g.may be unable to meet only one outcome. N.B. we should determine carer eligibility without considering if the persona cared for has eligible needs.
The Guidance relating to ‘necessary care’ has been called unhelpful.This paragraph was inserted post consultation. The risk is that it will be narrowly interpreted. So if cared for not eligible this might be seen to offer ‘wriggle room’ that by definition care supplied by carer is not necessary care.
But the carer does not have to provide care – need to be mindful that if carer not covering certain tasks the council might have to step in anyway.
6.4Do needs relate to carer providing this care?
Do needs result from something other than caring? Consider, for instance, the scenario described in “Starter for 10’ question 6 where Mrs Y’s neighbour faces considerable demands in child care and education.
6.5Is carer’s physical or mental health – as a result – deteriorating, or at risk of deterioration?
Clearly lots of carers will themselves have health conditions that do not arise from caring. The test here is whether physical or mental health conditions are deteriorating – or likely to deteriorate – as a result of providing care.
We should keep to the forefront of our minds the drastic impact that health can have on a carer’s capacity to care. Carers at Breaking Point[1] last year suggested that:
63% suffered from depression as a result of caring
90% said they were stressed
79% reported anxiety
50% of those at breaking point suffered physical injury or seen deterioration in health
Or
6.6Is carer – as a result – unable to achieve one or more of the outcomes designated in regulations?
The outcomes specified in The Care and Support (Eligibility Criteria) Regulations 2014, which are used to determine eligibility are set out below. These are not of course really outcomes- more life domains:
Carrying out any caring responsibilities for a child
Providing care to other persons for whom the carer provides care
Maintaining a suitable home environment
Managing and maintaining nutrition
Developing and maintaining family or other personal relationships
Engaging in work, training, education or volunteering
Making use of necessary facilities or services in the local community
Engaging in recreational activities
The carer must be:
Unable to achieve one of these without assistance; or be
Able to achieve but only with pain, distress, anxiety; or be
Able to achieve but in so doing endanger or likely to endanger health of carer and/or cared for
A key issue here is whether the carer would be able to achieve the outcome if there were no caring responsibilities? If ‘no’ then the carer would not be eligible.
N.B. some key domains that you might have thought would be included in the list of outcomes – such as safety – is not actually included.
6.7As a consequence is there, or is there likely to be, an impact on the carer’s well being?
‘Wellbeing’ is a broad concept. It is described as relating to the following 9 areas in particular (as set out in guidance):
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 their day-to-day life (including over care and support provided and the way they are provided)
Participation in work, education, training or recreation
Social and economic wellbeing
Domestic, family and personal domains
Suitability of the individual’s living accommodation
The individual’s contribution to society
Note that Guidance uses the words ‘including’ and ‘in particular’ so these areas of well-being are not exclusive and there may be others (such as choice).
The need is to consider what is important to the individual. Wellbeing is personal – it means different things to different people. Eligibility is not an absolute, and the carer is best placed to judge.
6.8Is this impact significant?
The word ‘significant’ is not defined and we are encouraged to adopt its ‘everyday meaning’
It could mean an impact of some size on one area, or a cumulative impact, or a domino effect
‘Significant’- by definition - means variation. As SCIE says: “A given situation could have a ‘significant impact’ on one individual but not on another. Therefore, professional judgement and analysis of the information gathered in the assessment are crucial to establishing whether there is indeed ‘significant impact’ on the individual’s wellbeing”.
But this leaves the potential for narrow, restrictive definitions.
6.9Some other issues
DISCRETION – the local authority has discretion to operate beyond these criteria
ORDINARY RESIDENCE - for carers the responsible local authority will be the one where the adult for whom they care is ordinarily resident. However, there may be some cases where the carer provides care for more than one person in different local authority areas - those authorities should consider how best to cooperate on and share the provision of support.
REPLACEMENT CARE - situations where the carer is supported by replacement care for the cared for person would be chargeable to the latter even where the latter is not eligible. Should the latter refuse to pay for such care the local authority would be in a difficult situation. One option would be to waive charges.
6.10Record-keeping and informing Individuals
The slide below reminds of need to keep a written record of what is decided (and why) and to give this to the carer, with advice/information where the carer is not deemed eligible.
7How to make an Eligibility Determination
Section 6 (above) raises various problems that flow from interpretation. Some additional lines of thought are set out below.
The Act calls on us to apply ‘everyday’ meaning for the word ‘significant’; and personalised understanding of concepts like ‘well-being’ and ‘necessary’. SCIE suggests that making an eligibility determination is about using evidence, reflecting upon it, and using professional judgement and experience as in the diagram shown above.
The problem is that exercise of professional judgement by different professionals might lead to unacceptable levels of variation in interpretation. This – on the one hand – may leave a council exposed to challenge. Or - on the other hand – it may give scope (if the council is so minded) to adopt narrow definitions that serve to exclude people from eligibility.
7.1Interpreting statues and applying criteria
There are a number of rules of interpretation typically followed by courts that we can usefully take into account:
Plain meaning or literal view, taking the statute word for word. But what is the plain meaning of ‘significant’, ‘necessary’ etc? Be mindful that civil servants may deliberately draft in ambiguity to achieve a political ‘fix’
‘Mischief’ rule - what was the ‘mischief’ not covered by previous law which parliament has sought to remedy when it passed this law? As far as carers are concerned the mischief of previous provision might be seen to be that carers had a right to be offered carers needs assessment only where they were providing regular and substantial care for someone over the age of 18
‘Golden’ rule - can depart from normal meaning to avoid an ‘absurd’ result
Purposive - what was the intention of parliament?
Integrated/contextual - respect words but don't stick religiously to them - interpret in context in which they appear