By Belinda Schwehr
These questions have been raised with Belinda through her legal training sessions and webinars.
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-assessment of one’s needs, followed by an assurance exercise by the council. 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 about their needs, because they are likely to be busy.
Paragraph 6.38 of the statutory guidance 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 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 would help if they have one. They have to satisfy a council of the existence of needs, so to that extent the answer is 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.
Carers and eligibility for service users
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.
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.
Eligibility criteria for carers
What is the criterion that the carer must be providing ‘necessary’ care to qualify for support, 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 (at paragraph 6.117) 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 eligibility regulations. This could imply that if an adult is capable of meeting their own needs, through local services (free or even chargeable), then the carer’s input may not be necessary. This 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 they are caring 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 the same ‘stretched’ definition of inability to achieve that applies to service users, in determining eligibility, apply to carers?
No, not quite. A carer’s needs could well be eligible, if they prevent the carer from being able, on their own, without assistance, significant pain or distress or endangering their or another’s health and safety, to achieve the outcomes considered to be the bare minimum for a tolerable life for a carer. But the difference is that, for service users, there is a fourth type of inability to achieve – that achieving the outcome takes significantly longer than expected. This is omitted for carers. 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 three 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, as outcomes they are unable to achieve. 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 wellbeing.
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 on wellbeing, 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?
Carers’ entitlement to support
Are carers entitled to services from the council or its providers, or only to the money in their personal budget?
It is very clear that if assessed as eligible, carers 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 to all carers. Understanding of that is very low in commissioning units across the country in my experience.
Advocacy rights for carers
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. They are less likely than service users to experience substantial difficulty in being involved in an assessment, planning process or revision of the plan (as is required to qualify for advocacy), but it is entirely possible. It is easy to imagine a cognitively impaired adult son or daughter becoming a carer to an older relative.
Wherever there is a duty to involve a carer under the act, 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.
Can a carers’ centre hub or support group ever be appointed as formal funded advocates?
The regulations say that ‘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)” (paragraph 7.45). 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 resource allocation system really works, and what the approach of the council is to the meaning of significant impact on wellbeing, in determining eligibility.
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 were having to carry the risk of having enough advocates) but would be doing the decision-making as to whether its own services were needed!
Belinda Schwehr, Care and Health Law
Tel: 01252 725890
Belinda is currently running a series of webinars on the Care Act and other aspects of social care law. Find out more here.