Statutory machineryCare and Support Statutory GuidanceCare and Support Statutory GuidanceCare and Support Statutory GuidanceCare and Support Statutory GuidanceCare and Support Statutory GuidanceCare and Support Statutory GuidanceCare and Support Statutory GuidanceCare and Support Statutory GuidanceCare and Support Statutory GuidanceCare and Support Statutory GuidanceCare and Support Statutory GuidanceCare and Support Statutory GuidanceCare and Support Statutory GuidanceCare and Support Statutory Guidance
9.10The preliminary machinery is set out above in chapter 8.
9.11What then follow are a series of duties and powers, at sections 18–23, and then a series of procedural steps revolving around the completion of a care plan, at sections 24–25.
Duty owed to adults
9.12Local authorities must meet the ‘eligible needs’ of adult (not being met by a carer) if, having made a determination under section 13:
i)the adult is ordinarily resident in their area, or present with no settled residence; and
ii)there is no charge under section 14 for meeting the needs; or
iii)the adult’s resources are below the ‘financial limit’ (‘condition 1’); or
iv)the adult’s resources are above the ‘financial limit’ but they ask the local authority to meet their needs (‘condition 2’); or
v)the adult lacks capacity to arrange their own support and no one is authorised to do so under the Mental Capacity Act 2005 (‘condition3’).
(section18).
Power in relation to adults
9.13Having completed a needs assessment and, if required, a financial assessment, local authorities may meet:
i)any needs of the adult who is ordinarily resident in their area, or present with no settled residence, providing the local authority is satisfied it is not under a duty to meet those needs, under section 18;
ii)having made a determination under section 13, the ‘eligible needs’ of an adult who is ordinarily resident in another area, providing they notify the other local authority and there is no charge, or conditions 1, 2 or 3 in section 18 are met (see above);
iii)urgent needs (and/or the needs of a terminally ill person) whether or not the adult is ordinarily resident in their area and without having yet completed a needs assessment or a financial assessment.
(section19).
Duty owed to carers
9.14Local authorities must meet the ‘eligible needs’ of a carer if:
i)the adult needing care is ordinarily resident in their area, or present with no settled residence; and
ii)(if the provision is of support to the carer) there is no charge, or conditions 1 or 2 are met; and
iii)(if the provision is of care and support to the adult, in order to meet the carer’s needs) there is no charge and the adult agrees to needs being meet in that way or, if there is a charge, conditions 3 or 4 are met.
9.15For these purposes:
i)condition 1 is that the carer’s resources are at or below the ‘financial limit’ (see paras
11.10–
11.15);
ii)condition 2 is that the carer’s resources are above the ‘financial limit’ but they ask the local authority to meet their needs;
iii)condition 3 is that the adult’s resources are at or below the ‘financial limit’ and the adult agrees to the authority meeting the carer’s needs by providing the adult with care and support; and
iv)condition 4 is that the adult’s resources are above the ‘financial limit’, but the adult nonetheless ask the authority to meet the carer’s needs by providing the adult with care and support.
(section20).
Power in relation to carers
9.16Local authorities may meet any needs of a carer if it is not under a duty to meet a carer’s needs for support under section 20:
i)providing the adult needing care consents to the provision of any care and support to them; but
ii)regardless of whether the local authority is required to meet the adult’s needs for care and support under section 18.
Needs that local authorities may not meet
9.17Local authorities may not meet certain needs:
i)an adult’s need for care and support that has arisen solely because of destitution or the physical effects, or anticipated physical effects, of destitution (section 21);
ii)health care needs required to be met under the National Health Service Act 2006, unless meeting those needs would be merely incidental or ancillary to social care and support provision and would involve a service of a nature that a local authority could be expected to provide (but is not nursing care from a registered nurse) (section 22). As the Care and Support Statutory Guidance clarifies, at paragraphs 15.29–15.36, the two most common types of health care that local authorities cannot provider are nursing care from a registered nurse and services that the NHS has to provide because the individual is eligible for NHS Continuing Healthcare;
iii)housing needs required to be met under the Housing Act 1996 or any other specified enactment (section 23).
Plans and adverse decisions
9.18The procedural machinery is set out in sections 24 and 25 and essentially requires the local authority to produce a care and support plan/support plan, or written reasons for not meeting needs, plus advice and assistance.
9.19Section 24 starts off the process:
•where a local authority is required to meet an adult’s or carers needs, or decides to exercise a power to do so, under sections 18–20, it must–
•prepare a care and support plan for the adult;
•tell the adult which needs, if any, may be met by direct payments; and
•help the adult with deciding how to have the needs met
•(section24(1));
•where a local authority is not required to meet needs and has decided not to exercise a power to do so, it must give the adult:
•written reasons; and
•(unless it has already done so) advice and information about what can be done to prevent or delay the development of needs for care and support, or support, in the future
•(section24(2)).
9.20The basic minimum content of a care plan is set out at section 25 of the Care Act 2014:
•as expanded upon in sections 9(4) and 10(5) and (6) of the Care Act 2014; and
•as explained at paragraph 10.36 of the Care and Support Statutory Guidance.
9.21The statutory provisions are as follows:
Care and support plan, support plan
25(1) A care and support plan or, in the case of a carer, a support plan is a document prepared by a local authority which–
(a)specifies the needs identified by the needs assessment or carer’s assessment,
(b)specifies whether, and if so to what extent, the needs meet the eligibility criteria,
(c)specifies the needs that the local authority is going to meet and how it is going to meet them,
(d)specifies to which of the matters referred to in section 9(4) the provision of care and support could be relevant or to which of the matters referred to in section 10(5) and (6) the provision of support could be relevant,
(e)includes the personal budget for the adult concerned (see section 26), and
(f)includes advice and information about–
(i)what can be done to meet or reduce the needs in question;(ii)what can be done to prevent or delay the development of needs for care and support or of needs for support in the future.
(2)Where some or all of the needs are to be met by making direct payments, the plan must also specify–
(a)the needs which are to be so met, and
(b)the amount and frequency of the direct payments.
…
(6)In seeking to ensure that the plan is proportionate to the needs to be met, the local authority must have regard in particular–
(a)in the case of a care and support plan, to the matters referred to in section 9(4);
(b)in the case of a support plan, to the matters referred to in section 10(5) and (6).
…
Assessment of an adult’s needs for care and support
9 …
(4)A needs assessment must include an assessment of–
(a)the impact of the adult’s needs for care and support on the matters specified in section 1(2),
(b)the outcomes that the adult wishes to achieve in day-to-day life, and
(c)whether, and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes.
…
Assessment of a carer’s needs for support
10 …
(6)A local authority, in carrying out a carer’s assessment, must have regard to–
(a)whether the carer works or wishes to do so, and
(b)whether the carer is participating in or wishes to participate in education, training or recreation.
9.22The relevant parts of the Care and Support Statutory Guidance are at Chapters 6 and 10.
9.26It should also be noted that the Mental Capacity Act 2005 will apply for all those who may lack capacity: see para
7.53 above.
How needs may be met
9.27A striking feature of the Care Act 2014 is that it does not, as the earlier regime did, present a list of specific services that a person may qualify for. Rather, it sets out an illustrative list of the types of provision that may be offered and an illustrative list of how provision may be made, so as to promote flexible and imaginative solutions that engage with real needs and preferences directly and not through the potential distorting lens of what services are available:
How to meet needs
8(1) The following are examples of what may be provided to meet needs under sections 18 to 20–
(a)accommodation in a care home or in premises of some other type;
(b)care and support at home or in the community;
(c)counselling and other types of social work;
(d)goods and facilities;
(e)information, advice and advocacy.
(2)The following are examples of the ways in which a local authority may meet needs under sections 18 to 20–
(a)by arranging for a person other than it to provide a service;
(b)by itself providing a service;
(c)by making direct payments.
9.28As the Care and Support Statutory Guidance puts it, at paragraph 10.10 ‘The concept of “meeting needs” is intended to be broader than a duty to provide or arrange a particular service’. Thus, at paragraph 10.11 onwards the Guidance encourages consideration to be given to a wide range of options, including traditional services such as care homes or home care, but extending (non-exhaustively) to assistive technology, local community or voluntary groups, universal services, the use of individual service funds, the use of brokering services.
Urgent cases
9.28.1By virtue of section 19(3) and (4) of the Care Act 2014:
(3)A local authority may meet an adult’s needs for care and support which appear to it to be urgent (regardless of whether the adult is ordinarily resident in its area) without having yet–
(a)carried out a needs assessment or a financial assessment, or
(b)made a determination under section 13(1).
(4)A local authority may meet an adult’s needs under subsection (3) where, for example, the adult is terminally ill (within the meaning given in section 82(4) of the Welfare Reform Act 2012)
9.28.2The Care and Support Statutory Guidance does not provide local authorities with advice as to how to exercise this power to make urgent provision. In general, however, the approach of the Court has been to grant interim relief where the justice of the case so requires, having regard to the public interest.
5R (Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1425 (Admin).9.28.3It may be notable that section 20 of the Care Act 2014 (the duty and power to meet a carer’s needs for support) does not contain an equivalent provision to section 19(3), entitling a local authority to make urgent provision before it has completed an assessment. It is not clear whether this omission was truly deliberate, although on a conventional approach to statutory construction the presumption must be that it was, given that carers are much less likely to need urgent assistance. The Care and Support Statutory Guidance says nothing about this issue and it may have been simply overlooked. A carer who does require urgent assistance ought however to be able to rely on section 1 of the Localism Act 2011 (see chapter 17).
6See R (GC) v Camden LBC [2016] EWHC 1762 (Admin), (2016) 19 CCLR 398.Relevance of carers to assessments of adults
9.29It is implicit in the Act and spelled out in the Care and Support Statutory Guidance that local authorities must assess an adult’s needs regardless of any care and support being provided by a carer, but can provide services that take into account such provision, so long as the carer is willing and able to continue:
6.15. During the assessment, local authorities must consider all of the adult’s care and support needs, regardless of any support being provided by a carer. Where the adult has a carer, information on the care that they are providing can be captured during assessment, but it must not influence the eligibility determination. After the eligibility determination has been reached, if the needs are eligible or the local authority otherwise intends to meet them, the care which a carer is providing can be taken into account during the care and support planning stage. The local authority is not required to meet any needs which are being met by a carer who is willing and able to do so, but it should record where that is the case. This ensures that the entirety of the adult’s needs are identified and the local authority can respond appropriately if the carer feels unable or unwilling to carry out some or all of the caring they were previously providing.
…
10.26 Local authorities are not under a duty to meet any needs that are being met by a carer. The local authority must identify, during the assessment process, those needs which are being met by a carer at that time, and determine whether those needs would be eligible. But any eligible needs met by a carer are not required to be met by the local authority, for so long as the carer continues to do so. The local authority should record in the care and support plan which needs are being met by a carer, and should consider putting in place plans to respond to any breakdown in the caring relationship.
9.30It is consistent with this, that a carer’s assessment must consider ‘whether the carer is able, and is likely to continue to be able, to provide care’ (section 10(1)(a)) and ‘whether the carer is willing, and is likely to continue to be willing, to do so’ (section 10(1)(b)), having regard to whether the carer works, or wishes to do so, or participates in education, training or recreation, or wishes to do so.
Involvement/advocacy/Mental Capacity Act 2005
9.31Paragraph
7.53 and following above addresses the importance of involvement, independent advocacy and the Mental Capacity Act 2005. All those considerations apply equally at the care planning stage, as indicated by the duty at sections 23(3)–(5) of the Care Act 2014 to involve the adult, the carer and other relevant persons in the preparation of a care and support/support plan and ‘take all reasonable steps to reach agreement with the adult or carer for whom the plan is being prepared about how the authority should meet the needs in question’. As it is put in the
Care and Support Statutory Guidance:
10.2 The person must be genuinely involved and influential throughout the planning process, and should be given every opportunity to take joint ownership of the development of the plan with the local authority if they wish, and the local authority agrees. There should be a default assumption that the person, with support if necessary, will play a strong pro-active role in planning if they choose to. Indeed, it should be made clear that the plan ‘belongs’ to the person it is intended for, with the local authority role being to ensure the production and sign-off of the plan to ensure that it is appropriate to meet the identified needs.
…
10.49 In addition to taking all reasonable steps to agree how needs are to be met, the local authority must also involve the person the plan is intended for, the carer (if there is one), and/or any other person the adult requests to be involved. Where the person lacks capacity to ask the authority to do that, the local authority must involve any person who appears to the authority to be interested in the welfare of the person and should involve any person who would be able to contribute useful information. An independent advocate must be provided if section 67 of the Act applies (see chapter 7). The person, and their carers, will have the best understanding of how the needs identified fit into the person’s life as a whole and connect to their overall wellbeing (see chapter 1). They are well placed to consider and identify which care and support options would best fit into their lifestyle and help them to achieve the day to day outcomes they identified during the assessment process. In practice, local authorities should give consideration to include a prompt to the person during the initial stages of the planning process to ask whether there is anyone else that the person wishes to be involved. Where the person lacks capacity, the local authority should make a best interests decision about who else should be involved.
Combined and joint assessments and plans
9.32Section 12(5) of the Care Act 2014 provides that a local authority may, with the consent of those involved, combine a needs assessment or a carer’s assessment with an assessment of another person.
9.33In practical terms, this means (for example) that local authorities can combine its assessment of an adult and their carer; or of two adults in the same household who both need care and support; or an adult and their child carer; or of an adult and a child in the same household who both need social care.
9.34That is followed through in section 25(11), which allows a local authority to combine care and support plans/support plans, in the same circumstances.
9.35There is no provision for joint care and support plans/support plans (prepared jointly with other bodies) but there is provision for joint assessments at section 12(7) insofar as where another body is undertaking an assessment at the same time as a local authority, the local may carry out that other assessment on behalf of, or jointly with, that other body (or bodies).
Personal budgets
9.36It is mandatory for a care and support plan to include ‘the personal budget for the adult concerned’ (section 25(1)(e)). The amount of the personal budget must be:
•arrived at co-operatively with the service user and other relevant persons;
•transparently reached and adequately reasoned;
•sufficient to meet needs.
9.37The purpose of specifying, in a personal budget, the cost of meeting needs, is to enable the individual to choose whether to meet all or some of those meets themselves, via direct payments, or through the local authority (which will retain the personal budget), or an individual service fund (a third party provider, to whom the personal budget is transferred). Again, it is all about providing the individual with choice and control.
9.38The level of personal budget is obviously of critical importance. Consistently with the case-law, paragraph 11.7 of the Guidance states that ‘An indicative amount should be shared with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process’. This issue is considered in detail at paragraphs 11.22–11.28, which emphasis the importance of ‘transparency’, ‘timeliness’ and ‘sufficiency’:
•local authorities should have a consistent and transparent methodology;
•the methodology should be flexible: it should not include arbitrary ceilings or use algorithmic-based systems such as Resource Allocation Schemes in more complex cases where they may be unsuitable;
•individuals must be informed how the budget is calculated;
•the care planning process should start with an ‘indicative amount’ that can be fine-tuned as the process continues, in particular in the light of the individual’s feedback;
•ultimately, the personal budget must be sufficient to meet eligible needs and the needs that the local authority has decided to meet and it must take into account the individual’s reasonable preferences.
9.39The personal budget statutory machinery is at sections 26 and 28 of the Care Act 2014, although sections 26(2)–(2)(b)(ii) and the whole of section 28 are not yet in force and are unlikely to come into force until 2020 (see ‘The cap on care costs’ at para
7.88 above).
9.40A personal budget is defined in section 26(1):
26(1) A personal budget for an adult is a statement which specifies–
(a)the cost to the local authority of meeting those of the adult’s needs which it is required or decides to meet as mentioned in section 24(1),
(b)the amount which, on the basis of the financial assessment, the adult must pay towards that cost, and
(c)if on that basis the local authority must itself pay towards that cost, the amount which it must pay.
(2)In the case of an adult with needs for care and support which the local authority is required to meet under section 18, the personal budget must also specify–
(a)the cost to the local authority of meeting the adult’s needs under that section …
9.41Thus the personal budget must separately identify the cost of meeting the eligible needs that the local authority is under a duty to meet, and other needs.
9.42The personal budget may also specify other amounts of public money available to the adult, for example, in relation to housing, health care or welfare (section 26(3)),
9.43The Care and Support (Personal Budget: Exclusion of Costs) Regulations 2014 provides that in cases where intermediate care and re-ablement support services are provided, the costs of doing so must be excluded from the adult’s personal budget if the local authority is not permitted to make a charge for providing the services by regulations made under section 14 of the Care Act 2014, or, if it is permitted to make a charge, it does not doso:
•the Care and Support (Charging and Assessment of Resources) Regulations 2014 prohibits charging for intermediate care and re-ablement for the first six weeks, so the personal budget cannot include the cost of intermediate care and re-ablement for the first six weeks;
•local authorities have a discretion whether to charge after six weeks, by virtue of section 14 of the Care Act 2014, to be exercised acting under the guidance in Chapter 8 of the Care and Support Statutory Guidance. Therefore, when a local authority decides to provide intermediate care or re-ablement for longer than six weeks, without making a charge, the cost of such provision may not be included in the personal budget.
9.44Personal budgets are considered at Chapter 11 of the Care and Support Statutory Guidance, which provides the following overview:
11.3. The personal budget is the mechanism that, in conjunction with the care and support plan, or support plan, enables the person, and their advocate if they have one, to exercise greater choice and take control over how their care and support needs are met. It means:
•knowing, before care and support planning begins, an estimate of how much money will be available to meet a person’s assessed needs and, with the final personal budget, having clear information about the total amount of the budget, including proportion the local authority will pay, and what amount (if any) the person will pay;
•being able to choose from a range of options for how the money is managed, including direct payments, the local authority managing the budget and a provider or third party managing the budget on the individual’s behalf (an individual service fund), or a combination of these approaches;
•having a choice over who is involved in developing the care and support plan for how the personal budget will be spent, including from family or friends;
•having greater choice and control over the way the personal budget is used to purchase care and support, and from whom.
11.4. It is vital that the process used to establish the personal budget is transparent so that people are clear how their budget was calculated, and the method used is robust so that people have confidence that the personal budget allocation is correct and therefore sufficient to meet their care and support needs. The allocation of a clear upfront indicative (or ‘ballpark’) allocation at the start of the planning process will help people to develop the plan and make appropriate choices over how their needs are met.
Preferred accommodation
9.45Local authorities must provide certain types of accommodation at the adult’s preferred location, providing various conditions are met, including that the adult or a third party pays any additional cost, beyond that provided for in the adult’s personal budget.
9.46The statutory basis for preferred accommodation is section 30 of the Care Act 2014 and the Care and Support and After-care (Choice of Accommodation) Regulations 2014
7SI No 2670. which provide that the local authority must arrange for an adult to be accommodated in the accommodation of his choice (reg 2) when:
•it is going to meet the adult’s needs under sections 18–20 of the Care Act 2014 by providing or arranging accommodation in a care home (reg 6), pursuant to the shared lives scheme (reg 7), in a supported living arrangement (reg 8) or in accommodation pursuant to after-care arrangements under section 117 of the Mental Health Act 1983 (reg 4);
•the preferred accommodation (reg 3) is the same type of accommodation as that specified in the adult’s care and support plan; it is suitable to the adult’s needs; it is available; the provider agrees to provide the accommodation on the local authority’s usual terms and any additional cost beyond that specified in the adult’s personal budget (or beyond the cost the local authority would usually expect to pay, in the case of after-care services) is going to be met in accordance with reg 5;
•a written agreement complying with the conditions in reg 5 is entered into. This entails that where the payer is the accommodation resident, either the 12-week property disregard applies or the resident enters into a deferred payment agreement. Otherwise, some other person must agree to pay the additional cost.
9.47As one might expect, section 76(4) dis-applies section 30 in relation to prisoners and adults residing in approved premises, except for the purpose of making provision after their release.
9.48Otherwise, this qualified right to choose where to be accommodated is a particularly clear example of placing the individual at the heart of the assessment and planning process. Annex A of the Care and Support Statutory Guidance explains how local authorities are expected to support this entitlement, starting with this:
2. The care and support planning process will have determined what type of accommodation will best suit the person’s needs. This could be, for example, a care home, shared lives or extra care housing. Where the type of accommodation is one of those specified in regulations, the person will have a right to choose the particular provider or location, subject to certain conditions. Where this is the case, the following guidance should be applied and in doing so, local authorities should have regard to the following principles:
•good communication of clear information and advice to ensure well informed decisions;
•a consistent approach to ensure genuine choice;
•clear and transparent arrangements for choice and any ‘top-up’ arrangements;
•clear understanding of potential consequences should ‘top-up’ arrangements fail with clear exit strategies; and
•the choice is suitable to the person’s needs.
3. Local authorities must also remember that the regulations and guidance on choice of accommodation and additional costs apply equally to those entering care for the first time, those who have already been placed by a local authority, and those who have been selffunders, but because of diminishing resources are on the verge of needing local authority support.
4. Local authorities should also be mindful of their duties under Section 1 of the Care Act 2014 to promote individual wellbeing. Further detail is available in Chapter 1.
9.49As under the previous regime, local authorities must not use the preferred accommodation and top up process to avoid:
•ensuring that there is a genuine choice of quality, diverse accommodation locally;
•arranging (and paying for) accommodation that meets relatively expensive needs;
•arranging (and paying for) more expensive accommodation when that is all that is available to meet eligible needs.
9.50Note also, that a local authority must provide written reasons for any refusal to arrange for the provision of preferred accommodation: the Care and Support and After-care (Choice of Accommodation) Regulations 2014 reg9.
9.51Age UK has produced a useful factsheet.
8www.ageuk.org.uk/Documents/EN-GB/Factsheets/FS60_Choice_of_accommodation_care_homes_fcs.pdf?dtrk=true.9.52See para
11.48 for more about the process of recovering top ups.
Direct payments
9.53The overall thrust of the legislation and guidance is that, subject to safeguards, local authorities should make direct payments wherever feasible and terminate them only as a last resort.
9.54As the Care and Support Statutory Guidance states:
12.2 Direct payments have been in use in adult care and support since the mid-1990s and they remain the Government’s preferred mechanism for personalised care and support. They provide independence, choice and control by enabling people to commission their own care and support in order to meet their eligible needs.
12.3 Direct payments, along with personal budgets and personalised care planning, mandated for the first time in the Care Act, provide the platform with which to deliver a modern care and support system. People should be encouraged to take ownership of their care planning, and be free to choose how their needs are met, whether through local authority or third-party provision, by direct payments, or a combination of the three approaches.
9.55The statutory regime is found at sections 31–33, 73(5) and 75(7) of the Care Act 2014 and the Care and Support (Direct Payments) Regulations 2014. Chapter 12 of the Care and Support Statutory Guidance applies.
What services direct payments may cover
9.56Direct payments can be made so as to enable the adult to purchase any kind of service without any limit except in relation to care home accommodation: only the local authorities identified by name in Schedule 2 to the Care and Support (Direct Payments) Regulations 2014
9SI No 2871.can make direct payments for the provision of care home accommodation for more than four consecutive weeks in any 12-month period (reg 6).
9.57Section 75(7) of the Care Act 2014 provides that a local authority may discharge its duty under the Mental Health Act 1983, to make after-care provision, by making direct payments. Schedule 4 to the Act amends section 31 and 32 for this purpose, by changing the language so that, when after-care services are under consideration, those sections apply to after-care services.
9.58The Care and Support (Direct Payments) Regulations 2014 provide that:
•direct payments must be made subject to the condition that they are not used to pay specified family members except insofar as the local authority considers it necessary to direct otherwise, either in relation to care provision or in relation to the provision of administrative and management support (reg 3(1)–(3));
•the local authority is required to endeavour to harmonise its direct payments with any payments made to the adult under the National Health Service Act 2006, to minimise any administrative or other burden on the adult (reg 10);
•regulation 11 substitutes words in the other regulations where after-care services under section 117 of the Mental Health Act 1983 are under consideration.
Who may receive direct payments
9.59Section 31 provides that direct payments must be made in cases where the adult possesses relevant capacity and where:
•the adult’s personal budget specifies an amount which the authority must pay towards the cost of meeting the needs to which the personal budget relates; and
•the adult requests the local authority to meet some or all of those needs by making direct payments to the adult or a nominated person; and
•four conditions are met, namely:
•any nominated person has agreed to receive the payments;
•the local authority is not prohibited by the Care and Support (Direct Payments) Regulations 2014 from meeting the adult’s needs by direct payments or, where the authority has a discretion not to make direct payments, the local authority has not exercised that discretion;
•the local authority is satisfied that the adult or nominated person is capable of managing direct payments by themselves or with accessible help;
•the local authority is satisfied that making direct payments is an appropriate way to meet the needs in question.
9.60Section 32 provides that direct payments must be made in cases where the adult lacks relevant capacity and where:
•the adult’s personal budget specifies an amount which the authority must pay towards the cost of meeting the needs to which the personal budget relates; and
•the adult lacks capacity to do so, but an authorised person
10A person who is authorised under the Mental Capacity Act 2005 to make decisions about the adult’s needs for care and support, or who is nominated by such a person as being suitable for this purpose or who is considered by the local authority to be suitable in the absence of any other authorised person.requests the local authority to meet some or all of those needs by making direct payments to the authorised person; and
•five conditions are met, namely:
•if there is a person authorised under the Mental Capacity Act 2005, they support the request;
•the local authority is not prohibited by the Care and Support (Direct Payments) Regulations 2014 from meeting the adult’s needs by direct payments or, where the authority has a discretion not to make direct payments, the local authority has not exercised that discretion;
•the local authority is satisfied that the authorised person will act in the adult’s best interests in arranging for the provision of care and support with the direct payments;
•the local authority is satisfied that the authorised person is capable of managing direct payments by themselves or with accessible help;
•the local authority is satisfied that making direct payments to the authorised person is an appropriate way to meet the needs in question.
9.61Section 73(5) disapplies the direct payments provisions in the case of prisoners and adults residing in approved premises.
9.62The Care and Support (Direct Payments) Regulations 2014 provide that:
•direct payments may not be made to persons falling within Schedule 1 (in outline, persons who abuse substances in a criminal context) (reg 2 and Sch 1);
•direct payments must be made subject to the condition that they are not used to pay specified family members except insofar as the local authority considers it necessary to direct otherwise, either in relation to care provision or in relation to the provision of administrative and management support (reg 3(1)–(3));
•a direct payment made under section 32 of the Act must be subject to the condition that the authorised person (i) notifies the local authority if the adult no longer lacks capacity, (ii) obtains enhanced criminal record certificates for all those involved in providing care other than specified family members or friends of the adult (reg 3(4)–(5));
•a local authority may impose conditions, including that needs may not be met by a particular person (but not that they must be) and that reasonable information is provided (reg 4);
•a local authority has to take various steps before concluding that it would be appropriate for there to be direct payments, including consulting with the adult and other relevant persons, and obtaining enhanced criminal record certificates for any authorised person (reg 5);
•direct payments may be continued during a period of temporary incapacity if a person capable of managing the payments is prepared to do so (reg 8);
•local authorities may continue to make direct payments to an authorised person, despite the adult regaining capacity, where that is temporary and the direct payments are made on condition that the authorised person allows the adult to manage the direct payments for any period during which the authority is satisfied that they have the capacity to do so (reg 9).
9.63Chapter 12 of the Care and Support Statutory Guidance advises that:
•local authorities should use their power to allow payments to be made to specified family members for care and, in particular, for administrative and management support (paragraphs 12.35–12.40);
•local authorities should give advice to individuals in receipt of direct payments about becoming an employer (paragraphs 12.48–12.51).
Review and termination
9.64Where the ‘conditions’ cease to be met, the local authority must terminate the provision of direct payments (section 33(4)).
9.65Otherwise, when conditions imposed under Regulations are not met, the local authority has a discretion to terminate provision and require repayments (section 33(5)).
9.66See para
9.62 above for events that may trigger review and determination.
9.67Chapter 12 of the Care and Support Statutory Guidance advises that direct payments should only be terminated ‘as a last resort, or where there is clear and serious contradiction of the Regulations or where the conditions in sections 31 or 32 of the Act are no longer met (except in cases of fluctuating capacity …)’ (paras 12.67–12.84).
Portability
9.68The statutory scheme that applies when service users move from one local authority area to another is set out in:
•sections 37–38 of the Care Act 2014;
•the Care and Support (Continuity of Care) Regulations 2014;
•Chapter 20 of the Care and Support Statutory Guidance.
9.69The purpose of the scheme is to ensure that service users can move from one local authority area to another with the minimum interruption of their care. That purpose is obviously assisted by the fact that, under section 13 of the Care Act 2014 and the Care and Support (Eligibility Criteria) Regulations 2015, there are now nationally applicable minimum eligibility criteria. The portability scheme aims to make the process of moving from one local authority area to another even easier.
9.70The machinery is triggered when section 37(1) applies (sections 37(2) and (3) are not in force):
Notification, assessment, etc.
37(1) This section applies where–
(a)an adult’s needs for care and support are being met by a local authority (‘the first authority’) under section 18 or 19,
(b)the adult notifies another local authority (‘the second authority’) (or that authority is notified on the adult’s behalf) that the adult intends to move to the area of the second authority, and
(c)the second authority is satisfied that the adult’s intention is genuine.
9.71Thus, while the machinery is not triggered if a carer with support needs proposes to move, it is triggered when an adult in receipt of care and support services proposes to move and become ordinarily resident in the new area, whether or not the services provided meet eligible needs, but provided the second authority is satisfied that the intention to move is genuine.
9.72The Care and Support Statutory Guidance suggests that:
20.12 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.
9.73The machinery set in motion is as follows:
•the first authority provides the adult/carer with ‘appropriate information’ (section 37(4)(a))(this is to help the adult/carer reach an informed decision whether to move). The Guidance indicates as follows:
20.13. 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.
•the second authority provides the first authority with a copy of the care and support plan, of any carer’s support plan where the carer will continue to provide care after the move and of any independent personal budget (section 37(4)(b));
•the first authority completes an assessment of the adult’s and any carer’s needs having regard to the second authority’s care and support/support plans (section 37(6)–(8));
the first authority must keep in touch with the second authority and the adult (sections 37(9)–(10));
the second authority must provide a written explanation if its needs assessment, or the cost of meeting needs, differs from that of the first authority (sections 37(11)–(13)).
9.74Section 38 provides, in essence, that when, on the day of the intended move, the second authority has not completed its assessment and undertaken the other steps required by section 37, then on and from that day the second authority has to meet needs whilst the first authority is no longer any duty to do so:
•the second authority must meet the needs for care and support/support being met by the first authority, until it has completed all the steps required by section 37;
•it need not meet them in the same way, but it must involve the adult, any carer and other relevant persons in the decision how to meet needs and try to reach agreement with them.