By Belinda Schwehr, Care and Health Law
The Care Act 2014 draft regulations and statutory guidance are out: hundreds of pages of juicy flesh on the bones of the new system, some of which was never even scented, let alone chewed over, in the Parliamentary passage of the bill.
There is guidance on changes to the notion of choice of accommodation, ordinary residence, and charging policy, on eligibility, which is very different from the last draft, on commissioning, which is genuinely transformational, and on independent advocacy. The last is a real game-changer and enough to make a legal framework trainer feel faint from excitement.
This series of pieces will analyse the strengths and weaknesses of the material, from a legal perspective: that is, it will focus on the differences between the old law and the new, the Act and the guidance, and the rhetoric versus what may well be the reality. I will take eligibility first.
The eligibility criteria scope and indicators
The draft national minimum criteria is still a work in progress, but is intended to match ‘the substantial’ band in the current Prioritising need in the context of Putting People First guidance, still often known as the Fair Access to Care Services (FACS) guidance.
My guess is that councils will think that the current draft is still too loose, but I am betting that the provider sector thinks that it is harder to qualify under than the previous draft, and I think that this is the better view.
The new national threshold is a set of indicators about the state of being into which no-one must fall, and out of which, those who are in it, must be lifted. It brings in the need for assessors to make an explicit judgement about consequential ‘significant’ impact for the person’s wellbeing, arising from the person’s inability to do certain defined things common to daily living.
The guidance here is guidance about regulations, and regulations are law. But law needs to be interpreted. If a law makes a duty turn on a question of fact, like pregnancy, there’s not much room for judgement – one either is or isn’t. But when the duty turns on judgements, and the judgements turn on subjective professional judgement, in a sector where it is fashionable to suggest that everyone is their own best care manager, it is difficult to see how this legislation could ever achieve its aim to simplify adult social care law.
The concepts that need interpreting locally, and I would say, in a transparent way, are:
- What is essential?
- What is significant?
- What amounts to something that is likely to happen, and in what timeframe?
There are no answers in the guidance, as yet, and not even the suggestion that if these things are matters of policy, then it would be a good idea to consult on them.
What social workers need to know
What is clear, though, is that all social work and social care staff will need to know:
The list of areas that together make up the scope of wellbeing (set out in section 1 of the Care Act), and the aspects of that scope to which one must have particular regard when discharging care and support functions to a carer or service user.
The list of activities that are currently called ‘outcomes’ in the draft regulations, which must be considered in an assessment in relation to whether the person can achieve them.
The extended definition of not being able to do something – which is helpful to the person, because it allows one to count as unable, even if one can do something on the list, but not without assistance, significant pain, distress, anxiety or without endangering self or others.
The way the person feels about the wellbeing factors, so that they can help both the person and the council identify the way in which the person’s difficulties would or could impact on these factors, and thus maximise the prospects of agreement between service users and council.
Changes to the list of indicators since the last draft
I think that the description of the activities making up essential care tasks has been improved since the first draft, published last June, by the removal of ‘assistance with taking medication’, which is not, arguably, even a daily living task for all human beings. But I cannot see any logic for leaving out shopping and money management, which had been included in the first draft as “basic household activities” people may be unable to carry out.
It is perhaps not surprising that they have been removed, after lobbying from the council sector, but they are clearly essential to daily life, independence and wellbeing, on the now-to-be-assumed footing that one has no other means to get these things managed.
One or some?
The first draft based eligibility on an inability to carry out one or more basic personal care or household activities. The current draft, instead, makes inability to carry out some or all basic care activities the criterion.
If the test is inability to achieve some or all basic personal care tasks, and you are struggling with just one, you are not going to be eligible, and this change is surely no accident.
The new draft chimes with the reference to an “inability to carry out the majority of personal care and domestic routines” in the substantial band of the existing guidance. However, the critical band under FACS refers to an inability to carry out ‘vital personal care tasks or domestic routines’; so a critical risk to independence potentially covers inability in relation to just one vital personal care task, and all councils are meeting critical risks.
There is no explicit advice in the guidance about what to do about such people, other than not to withdraw services, since councils will be able to use a power to provide, even if a person is no longer eligible.
In setting out what constitutes a ‘significant impact on the adult’s wellbeing’, the guidance simply says that local authorities should determine whether:
• the adult’s needs impact on an area of wellbeing in a significant way; or,
• the cumulative effect of the impact on a number of the areas of wellbeing mean that they have a significant impact on the adult’s overall wellbeing.
The guidance goes on: “In making this judgement, [significant impact on the overall wellbeing] the local authority should look to understand the adult’s needs in the context of what is important to him or her. The impact of a given need may be different for different individuals, because what is important for the individual’s wellbeing may be different. Circumstances which create a significant impact on the wellbeing of one individual may not have the same effect on another.”
But it is still absolutely the judgement of the council, not the person, so long as those representations, through self, relative, or paid advocate, are considered by the authority.
I do not understand the absence in the guidance of any reference to tools to assist in calculating risk, if impact is a substitute for risk.
Domains versus needs versus activities versus service response vs outcomes
The consultation on the draft guidance and regulations says this, of the domains of daily living regarded as the focus of needs assessment:
“The question is whether these could be described as outcomes rather than activities. The draft regulations define these activities as eating and drinking, maintaining personal hygiene, toileting, getting up and dressed, getting around one’s home, preparing meals, and cleaning and maintenance of one’s home. As currently described, these activities define needs which are widely understood, and are used to inform the discussion about what outcomes the person wants to achieve. However, using a list of activities or tasks in this way risks undermining the focus on outcomes which is espoused by the Act in other areas, and we would like to consider alternative approaches during consultation.”
I do not think that what I would call domains of maintaining, accessing and carrying out the activities as described should ever be described as ‘outcomes’ at all.
From the council’s perspective the person’s not being unable to do these things, or not so unable that their wellbeing is impacted upon in a significant way, is the only outcome that matters, legally.
But from the client or carer’s perspective, an outcome, according to all works on personalisation, is the client’s or carer’s own focus within the domains, as to whether they actually matter to that person, a bit, a lot or not at all.
I think that allowing for that distinction is the only way in which a person could ever use their presumed mental capacity to contend that they did not have a need for something that the professional thought that they did have one for, and that this should be recorded as a want, not a need.
Where both client and care manager agreed that there was a need, but the client was not willing to pay for the suggested response, a different solution would be required. One would still have a need, and it might be causing a significant impact, and might therefore be eligible, even if it was a trigger for deciding to exercise a discretion not to charge for the response.
Consequential ‘significant impact’ on the sector’s training needs
This impact is self-evident, it is to be hoped: more legal literacy is required, not the least because the guidance says that independent advocates need a legal knowledge base, as well as a skills base, in order to discharge their very important role!
In the next piece I will examine what is left of the current concept of eligibility, and its relationship with met needs.