Carers’ assessment legal framework questions – under the Care Act – for Carers’ Week 2016

Questions about carers’ Assessment rights under the Care Act (support planning issues to be covered on another day)

Are carers entitled to self-assess? Yes, but only in the same way as service users – it’s not self-assessment of eligibility, but supported self-analysis of one’s needs, followed by an assurance exercise. It is, however, likely to be much more welcome to carers, if they can do some form filling online or be asked on the phone, because they are likely to be busy. Para 6.38  says: “To help the adult with needs for care and support, or the carer, prepare for the assessment the local authority  should provide in advance, and in an accessible format, the list of questions to be covered in the assessment. This will help the individual or carer prepare for their assessment and think through what their needs are and the outcomes they want to achieve.”

Do people who are carers have a right to be assessed? Yes, virtually, at least, they do, if a person has been acknowledged as a carer. As with service users, assessment is triggered by the appearance of any needs – and case law makes it clear that one must not apply eligibility criteria to that question. Just as with service users however, the route TO an assessment may be obscured by a prevention and reduction effort; and that is usually a good thing, but will sometimes frustrate.

Do carers have to prove that they have needs? Well, they don’t have to provide proof, as such; for instance, they don’t have to get a doctor’s letter about their deteriorating mental health, but it will help if they have one. They have to satisfy a council of the existence of needs, so to that extent yes: but their account of their situation is in itself evidence. No diagnosis is needed and most people will be given the benefit of the doubt.

Can a carer force a council to do whatever they themselves have been doing? No. The council is the decision-maker about assessed eligible needs of the service user, and if the carer is willing and able to do anything, the council does not have to care plan for duplicating that input. If the carer ceases to be willing OR able, then the council has to reconsider the situation of the service user, and not all of what the carer will have been doing will overlap with eligible assessed needs. The carer may have been meeting what seem to the council to be wants, given the wording of the minimum eligibility criteria concept. So the carer can say what they are willing and able to do, but the council is only obliged to meet assessed eligible needs taking account of what the carer is not willing or able to do.

Are carers entitled to services from the council or its providers, or only to the money? It is very clear that if assessed as eligible, they are entitled to services or the money; they do not have to take their budget in the form of a direct payment. These services are supposed to be individuated to the carer, and not just a bunch of services provided for ALL carers….and understanding of that is very low in commissioning units across the country in my experience.

Are carers entitled to independent funded advocacy? Yes in the same sense as prospective and established service users – that is, if they meet the criteria. It is less likely that they will experience substantial difficulty than service users, but entirely possible. It is easy to imagine a cognitively impaired adult son or daughter becoming a carer to an elderly relative. The duty is the same because wherever there is a duty to involve a carer, there is potential for funded advocacy rights. It is unclear whether the duty to involve a carer in a service user’s assessment is one that can trigger a right to advocacy for the carer in that context; what is clear is that advocacy is intended primarily for supporting a person in an assessment or plan or revision or safeguarding issue that is about that person. The guidance appears to have been written deliberately ambiguously, as if the authors could see the difficult but didn’t know how to resolve it.

What is the criterion that the carer must be providing ‘necessary’ care, supposed to convey? The guidance is clear that the carer does not have to be providing care that would be regarded as meeting only eligible needs; so it must mean something else. The guidance seeks to explain this condition in terms of the support that is being provided being something that the person could not do for themselves. “If the carer is providing care and support for needs which the adult 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.” That would have to mean that a task that was not mentioned in the eligibility regulations but which the carer was helping with, could still count and provide the basis on which the carer was within the scope of the carer support regulations. This could imply that if an adult is capable of meeting their own needs, through local services (free or even chargeable, maybe?) then the carer’s input may not be necessary – which seems to refer one back to the possibility that the assessor might take the view that services exist ‘out there’ that mean that the carer is just ‘choosing’ to dedicate themselves to the person cared for, and that the person cared for should just make do with whatever’s available, or pay, for respite. So we need case law about the meaning of this phrase, to my mind.

Does a carer’s assessment require a person’s positive consent in writing? No, but a person can refuse, and that excuses the council from doing one; I can see that a carer’s refusal to be assessed could lead to a safeguarding enquiry about the person cared for, if there is real concern about the carer’s own state of mind. There is no reference (unlike with service users) to the assessment duty still subsisting if the care manager thinks that the carer may be subject to abuse or neglect nor if the carer was thought to lack capacity  to refuse, interestingly.

Does the same ‘stretched’ definition of inability to achieve, that applies to service users, apply to carers? No, not quite. A carer’s needs could well be eligible, if they prevent the carer’s ability, on their own, without assistance and without significant pain, distress etc, to achieve the outcomes, considered to be the bare minimum for a tolerable life for a carer. But the difference is that the reference to the task taking longer than for ordinary people is omitted. So carers are not able to be regarded as eligible, just because it takes them much longer to keep their houses clean for instance, after doing the night sitting for 3 nights!

Do you think the carers’ criteria are easy to qualify under? Yes I do. There is scope for a carer to refer to children that they might be caring for; other people they care for; their interests in developing or maintaining relationships, and the desire to work, train, volunteer and pursue leisure. The difficulty experienced in doing those things, associated with caring, is a choice that the carer has made: the Care Act enables the carer to balance the choice with maximising the chances of fulfilling those other important aspects of well-being. Since the assessment should be carer-focused, the carer has the chance to explain the significance of the impact being suffered, and the carer need only credibly assert that their physical or mental health is likely to deteriorate, along with consequential significant impact, in order to be regarded as eligible. All this is clearly policy driven, since carers provide free care: what government would not want to maximise the number of eligible carers?

Do councils have to do support plans for eligible carers? Yes, it is mandatory, even if the carer is being given a direct payment to spend on meeting their own needs. See s25. If they are eligible, they are entitled to written reasons, and all the more so if they are deemed ineligible, and the duty to do a support plan follows on from a finding that ANY of the person’s identified needs meet the eligibility threshold.

Can a person’s friend or relative who is being paid for actual care, be seen as an appropriate person, so that they get to do the supporting and thus avoid the need for an advocate? No, the regulations about advocacy forbid it. Any such friend or relative, (indeed ANY current provider of care or treatment) should still be consulted as a best interests consultee, if the client is incapacitated, because of s7 Mental Capacity Act and the Croydon case, as interested in the person’s welfare; alternatively, if the client has capacity, then that person is entitled to insist upon any chosen person being involved, under s9 Care Act. Remember that for informal support to be deemed to be appropriate, the prospective supported person must be asked for their consent first.

Can a Carers’ Centre/Hub/Support Group ever be appointed as formal funded advocates? The regulations say that the ‘person’ who is providing the advocacy must not be employed by or otherwise working for the council. I take that to mean that the contracted advocate must not only not be employed, but must not be a contractor to the council – for what else could it mean? That would mean that no company with any other contract with the council, could be contracted to provide advocacy. That’s not how it’s happening, is it? Most advocacy companies have got other contracts for IMCA advocacy, or generic advocacy. But perhaps a carers’ hub might be grant funded for its other activities, and not, as such, ‘otherwise working for’ the council.

A phrase added to the amended statutory guidance in respect of who may be an advocate says that “the independent advocate must not be working for the local authority, or for an organisation that is commissioned to carry out assessments, care and support plans or reviews for the local authority unless the potential conflict of interests is adequately addressed within the organisation’s structure (for example a different group within a company or through an effective ‘firewall’, as in the banking industry)” That seems to be treating the advocate only ever as a human being, and then saying the advocate can’t be working for an organisation that is working for the council – unless there’s a firewall. So in a process of reverse reasoning, it seems to be saying that if you happen to be working for a company that is doing carers’ assessments for a council, you can still be an advocate – as long as there’s a firewall!!

I can see that although there is a specific regulation saying that you can’t be an advocate if you work for a delegate of the council doing social work functions, there is nothing saying ‘but it’s ok if there’s a firewall.’ This therefore seems to me to be guidance that is wrong in principle: The staff doing carers’ assessments or plans would be privy to how the local RAS really works, and what the approach of the council is to the meaning of significant impact. No person could be both an assessor, one week, and an independent advocate, the next week, to my mind. Imagine how that assessing body would set about the process of deciding whether funded advocacy was needed in the first place. It would want the work, (or maybe it wouldn’t, if it is having to carry the risk of having enough advocates, or has been given a block based fee!!) but would be doing the decision-making as to whether its own services are needed!!









Belinda Schwehr

About Belinda Schwehr

Belinda has been a lawyer (both a barrister and then a solicitor advocate), a law lecturer at a university, and a trainer and consultant specialising in Adults' Social Care legal framework issues. She first became interested in social care law when the Gloucestershire case was running between 1995 and 1997, never having met a real live social worker, before that point! She regards social care as the most interesting field of law she has ever been associated with, combining aspects of public law, the regulation of power, economics, management skills, EU law, procurement, criminal law, incapacity law, land law and contract, and doesn't expect ever to tire of the stuff. If the Care Act is going to be the last word on it, however, she would like to think it was worth all that sitting there and getting fatter whilst thinking about how it should all hang together! She does glass craftwork and house renovations for a hobby, has one son in his twenties, and about 5000 online friends... soon to be 50,000, with any luck!

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