So what will carers gain?

“Helping the carer care for the person cared for” is how the
Carers and Disabled Persons Act 2000, which comes into force in
April, is described. Steve Cragg explains how it is going to
work.

What effect will the Carers and Disabled Persons Act 2000 have
when most of it sections come into force on 1 April 2001?

Although the Carers and Disabled Persons Act 2000 is already on
the statute book, it was only on 14 February this year that the
secretary of state made an order bringing most of its provisions
into force on 1 April. The act, in general terms, provides carers
with much needed statutory rights to access assessments and
possible provision of services to support them in their caring
roles.

One of the main provisions of the act is to give carers (over
16) the right to an assessment if they are providing a substantial
amount of care on a regular basis to a person (over 18) to whom the
local authority would have the power to provide community care
services.

The assessment is of the carer’s ability to care, but
importantly, the council must consider the assessment and decide,
in this order:

• Whether the carer has needs in relation to the care
  provided.
• Whether the local authority could meet those needs.
• Whether services should be provided.

The council is given a very wide discretion as to the services
it can provide to a carer, so long as it will “help the carer care
for the person cared for”, and can include a service delivered to
the cared for person even though provided to the carer.

The exception to this is that services of an intimate nature
cannot normally be provided under this act to the cared for person.
New regulations define what constitutes a service of an intimate
nature and includes most personal care.

As services can sometimes be provided either through this act or
through the NHS and Community Care Act 1990, the act states that
the local authority must decide under which provision the service
is being provided. This is clearly important for the local
authority and the service users to know who the recipient of the
service is, who can be charged, and who may be entitled to direct
payments.

As to charging, the act contains specific provision for charging
carers for services they receive, on the same basis that community
care service users can be charged.

As to direct payments, the act contains amendments to the
Community Care (Direct Payments) Act 1996 to allow carers in
receipt of services under the new act to be entitled to
consideration for direct payments in lieu of services.

Next, the act makes provision for a person with parental
responsibility for a disabled child to request an assessment of his
or her ability to care for that child, where the local authority is
satisfied that it could provide services under section 17 of the
Children Act 1989 (whether it is assessing the child and its family
for such services or not).

The local authority must then take the assessment into account
when deciding what, if any, services to provide under section
17.

Further, on section 17 of the Children Act 1989, a new section
17A is to be added, giving local authorities the powers to make
direct payments in lieu of Children Act services, either to a
person with parental authority or to the child him or herself if
aged 16 or 17.

Practitioners also need to be aware that a plethora of guidance
comes with the new act. Policy guidance (which social services
departments must comply with unless there are exceptional
circumstances) deals with the scope of the act, assessments,
service provision and direct payments. There is also new practice
guidance on the provisions of the act as they affect carers, young
people and direct payments.

All guidance is available on the Department of Health website:
www.doh.gov.uk

Steve Cragg is a barrister specialising in community
care and judicial review cases and is a fellow in public law at
Essex University.