Author: Lorna Easterbrook

Lorna Easterbrook

About Lorna Easterbrook

Lorna blogs about Older People and Carers. Lorna's work covers health, social care, and housing - mostly with and for older people and, more recently, working carers. She trains, talks, informs, evaluates, reviews, develops, analyses, writes, and makes short films. Her professional background includes working for a Care & Repair scheme in the south Wales valleys, for Age UK, and the King's Fund. She has also been a family carer. As well as running her own consultancy, Lorna is an Associate of Community Catalysts, and a Trustee of Care & Repair England.

CSI: what’s significant about that?

The regulations containing national minimum eligibility criteria are one of many major changes to social care provision in England. I was going to say ‘significant’ changes, but as this blog is about considering – in these very early days – how ‘consequential significant impact’ (CSI) is being understood in practice, I thought it would get just a little too confusing.

(Apologies to those who thought this post might be about a new, English social services version of the US drama series: although, to be honest, you really wouldn’t want a care system that focused exclusively on dead bodies, however much you might covet their investigative and forensic IT systems…)

The eligibility criteria, ‘test’, or threshold – all terms I’ve heard used to describe the new system – comprises three parts. The ‘significant’ element is the final part of the test (described here in shorthand only):

  • that (this is the 1st part) relevant needs (for an adult, or a carer) mean that …
  • there’s an inability in certain prescribed ‘outcome’ areas (the 2nd part), as a result of which …
  • there’s a significant impact (or likely to be) on area(s) of the person’s well-being as set out in section 1 of the Act (the 3rd part of the test).

The guidance says (paras. 6.110-6.111):

‘6.110. The term ‘significant’ is not defined by the regulations, and must therefore be understood to have its everyday meaning. Local authorities will have to consider whether the adult’s needs and their consequent inability to achieve the relevant outcomes will have an important, consequential effect on their daily lives, their independence and their wellbeing.

6.111. In making this judgement, local authorities should look to understand the adult’s needs in the context of what is important to him or her. Needs may affect different people differently, because what is important to the individual’s wellbeing may not be the same in all cases. Circumstances which create a significant impact on the wellbeing of one individual may not have the same effect on another.’

Why is this causing difficulties? There’s a whole range of reasons. One expressed to me by someone for whom English is not their first language – fluent though they undoubtedly are – was that they do not feel they understand well enough all the nuances of this word, and especially the number of ways it might be understood by native English speakers, to confidently apply it. Is the guidance inviting assessors to treat every person’s own view as determining the professional’s judgement, or merely encouraging assessors to accept that people experience inabilities differently. If the latter, does it mean that the tough and robust are less likely to be seen as eligible than those who are ultra sensitive to the impact?

A second reason may be if many people are still largely operating in the pre-April mind-set of FACS (Fair Access to Care Services). There, ‘critical’ and ‘substantial’ eligibility tests were concerned with situations or gaps being ‘severe’ or ‘vital’ or where the ‘majority’ of aspects of an area of the person’s life was affected, or of current situations not being sustainable unless the State did something, not least because those decisions largely stopped at what is now the second part of the eligibility test (the general ‘outcome’ areas, or domains). However, the current eligibility test now goes on to this third part about consequential significant impact on wellbeing, and it’s only after that final, third, part that eligibility is established. Ignoring this third part of the threshold and making eligibility decisions at the earlier, second stage simply means decisions aren’t compliant with the law. Too many people would be found eligible based on inability alone, or too few, where the cumulative effect of two or more areas of inability might add up to significant impact, but that’s been overlooked by ignoring the third part…

A third reason is linked in with section 2 of the Act, and the expectations around reducing, delaying or preventing needs for care and/or support:  that for some, is what underlines the eligibility decision is the significant impact on the person’s well-being of not taking the preventative route: in other words, whether the risk to the person’s independence is creating (or could create) a significant impact. This interpretation isn’t so surprising, given that paragraph 6.110 broadens out the notion of CSI to include effect on independence.

Getting to grips with what underpins how people are deciding what does – and does not – constitute ‘consequential significant impact’ is more than merely a pedant’s concern. Being able to explain, record, and if necessary defend why someone has decided there is or isn’t a significant impact is central to the whole eligibility process. One way I’ve been explaining this recently is to ask practitioners to think of the decision as an incomplete sentence, which they need to be able to finish: “There is/is not a significant impact in this situation because ….”

Of course, taking that approach also applies to current and potential clients and carers who may also want to explain why an impact is significant for at least one of those crucial areas of their well-being, not least if they are seeking to persuade their council to make a different decision. Adults and carers might look at what they’ve said in their assessment really matters to them, and then make the case for how this important matter links with their assessed needs, with their agreed inabilities in outcomes, and on to the areas of well-being that are affected.

So – aside from suggesting people look up the meaning of significant in a dictionary – what help is there at present? The adult’s (or carer’s) inability to achieve the minimum required number of outcomes impacts on at least one of the statutory aspects of well-being in a significant way, the guidance says (para. 6.109); or, there might be an impact on a number of the areas of well-being and this cumulative effect is what creates ‘significance’ because this is affecting the adult’s overall well-being.

SCIE – the Social Care Institute for Excellence – talks about a number of aspects including that, even if needs which create inability in various outcome areas are perceived to be ‘moderate/low’, the accumulative effect of those needs creates significant impact. This seems to be looking at the pre-April FACS way of understanding needs (‘critical/substantial/moderate/low’) and then applying it to the post-April three-part eligibility threshold. It may be useful for those struggling to make this transition from pre- to post-April approaches, providing everyone is clear that the level of the person’s needs may in fact have nothing to do with significant impact on well-being.

This is one of the many areas of the Act where – for all involved – understanding and interpretation will develop and change over time. In the meantime, here’s an example for you to consider.

A woman with a muscular-neurological condition no longer has good grip in either of her hands, or much strength in her hands and arms. She can’t turn her ordinary taps fully on and off. She can’t change the controls on the central heating boiler, or refill the boiler’s water level when that’s needed. She’s finding it hard to turn off the gas controls on the cooker, and take things on/off the stove or in/out of the oven, and to chop up vegetables. She can’t always easily turn her front door key, or grasp door handles. She can’t change lightbulbs. But she can write, and type, and dust her home, and wash, and dress, and do her hair, and handle coins, and push her train ticket through the barrier and collect it on her journey to work. Does the level of her needs matter? No: what matters is that, because of needs relating to an impairment or illness (1st part of the eligibility test), she can’t do at least two of the ten areas listed as outcomes for adults – Being able to make use of the home safely, and Managing and maintaining nutrition (2nd part) – and it’s having (or not having) a significant impact on her life (3rd part) because ….

How would you finish that sentence? Really interested to hear your thoughts!

Timing

The art of good … –

      – Timing.

– …comedy is ….

(An old joke – or, rather, an upcycled joke: one which may or may not work in this medium!)

So what’s this about? The timing of different aspects of the Care Act functions that have to be delivered by councils….

I’m already being asked, mostly by family carers at the moment, if there are any targets or time limits within which local authorities have to be complete certain things – the stages of that customer journey, for instance.

They mean the stages that are currently essential in their lives, or in the lives of the person they care for, such as:

• assessments for care/ support
• eligibility decisions
• actual provision of care, or support – including preventative support.

Carers want to know what arguments they can use to get authorities moving faster. To those people, in the most part, I rather sadly shake my head and bemoan the loss over the last several years of helpful targets: the ones that people used to use to support their situation, such as the maximum time between first making contact and the assessment being completed; or how quickly post-assessment decisions had to be made and shared. All long gone.

What we currently have in the Care Act are very few actual time limits. For those who have got all the way through the eligibility process to find unmet eligible needs for which their council is taking responsibility, there are time limits relating to reviewing the care plan (initially at 6 weeks, and then at least every 12 months – at least an expectation that the gaps will be no longer than that), and time limits for reviewing agreed direct payments. There are still – in section 74 and Schedule 2 to the Act – time limits relating to hospital discharge of NHS patients for whom (the NHS believes) leaving hospital is not likely to be safe without some care and support post-discharge.

There is even a rather extraordinary time limit on the face of the Act itself, in section 29, for local authorities to retain care accounts (relating to the care cap, yet to come into force at the time of writing this particular post) until either it becomes aware of the person’s death, or for 99 years starting with the day on which it last updated the account.

But these are all time limits on the State, once it has taken responsibility to do something. For those trying to get the State to do something that might ultimately mean the adult or carer might be on the receiving end of that responsibility – to finish an assessment, for example – may have to rely on the Guidance saying that the process being carried out should be done in a timely manner.

However, the guidance particularly around assessment could and should still be helpful to adults and carers. At present, in some areas at least there are reports of two factors historically contributing to delaying the completion of assessments, or of making decisions about eligibility:

• ‘Pausing’ the assessment for preventative support, where in fact the person is being placed on an apparently indefinite  waiting list for a preventive service (including community aids and adaptations);
• Insisting that a medical diagnosis is necessary in all cases to proceed with eligibility decisions.

The guidance says: (with bold font added for emphasis)

‘6.29 An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs and a consideration of any fluctuation in those needs. Local authorities should inform the individual of an indicative timescale over which their assessment will be conducted and keep the person informed throughout the assessment process.’

Clearly, this could aid adults and carers particularly if their council hasn’t told them a likely timescale, and isn’t keeping them informed: leaving people indefinitely mid-system is no more a valid option than not keeping them up to date.

Other parts of the guidance may also help in situations where adults and carers are facing delays, such as being told there has to be a medical diagnosis (bold added for emphasis):

‘6.105. The first condition that local authorities must be satisfied about is that the adult’s needs for care and support are due to a physical or mental impairment or illness and that they are not caused by other circumstantial factors. Local authorities must consider at this stage if the adult has a condition as a result of either physical, mental, sensory, learning or cognitive disabilities or illnesses, substance misuse or brain injury. The authority should base their judgment on the assessment of the adult and a formal diagnosis of the condition should not be required.’

Unless the authority can give a good reason why a formal diagnosis is needed for a specific individual, for the thinking required by the Act, the decision-making process should not be delayed – and, if they did delay without a good reason, there would be strong grounds for a complaint or more. Applying a blanket policy (that everyone must have a formal diagnosis) would likely be open to a much stronger challenge.

Deciding to pause an assessment to allow for preventive support to be put in place is encouraged, providing of course this is deemed to be

a) helpful and suited to that particular person and – critically –

b) the support is actually put into place. Interrupting an assessment simply to put someone onto a known waiting list for one of these services, and calling it a ‘pause’ in the assessment is unlikely to cut the legal mustard (emphasis added):

‘6.25 Local authorities should not, however, remove people from the process too early. Early or targeted interventions such as universal services, a period of reablement and providing equipment or minor household adaptions can delay an adult’s needs from progressing. The first contact with the authority, which triggers the requirement to assess, may lead to a pause in the assessment process to allow such interventions to take place and for any benefit to the adult to be determined.…….’

The government suggested that the Care Act would save money by clarifying legal issues, and thus saving time and costs on litigation. But one of the issues that arises as State systems become more complex, and particularly when resources become more stretched (everyone’s resources, that is – not only local councils, but the resources of individuals and their community and personal networks) is that adults and carers may need to – and increasingly will – themselves become Legally Literate.