No need to reassess people against Care Act eligibility threshold until their next review, says government

People currently receiving council-arranged care in England will not have to be reassessed against the Care Act 2014 eligibility threshold until their next review, despite the legislation coming into force on 1 April.

However, any reassessment must be carried out before 1 April, 2016, or councils will put themselves at risk of legal challenge.

The news came as the government set out plans to make the transition from the existing legal framework for community care in England to the Care Act, from 1 April.

Reassessing need

Under the The Care Act 2014 (Transitional Provision) Order 2015, people currently receiving services and support from English councils, including direct payments, will continue to receive it under the existing law until their needs are reviewed under the Care Act. From this point the new law applies to them, whether local authorities assess that they are required to meet, or not meet, the person’s needs.

As reviews tend to take place at least annually, the government has said that it makes most sense for this reassessment to take place at the time of the person’s next planned review. However, the order stipulates that it must take place before 1 April, 2016.

If a person has not had a review by this date, they will be treated as being eligible for care and support under the Care Act. If a council continues not to review their needs, they will be increasingly violating their duty under the act to keep a person’s needs under review. For all cases involving new clients, the Care Act applies from 1 April.

Ordinary residence

The transitional order also states that the change in the law on determining ordinary residence for people in out-of-area placements brought in by the Care Act will only apply to arrangements made after 1 April. For arrangements made before 1 April, the previous law on deeming ordinary residence, under section 24 of the National Assistance Act, applies.

This means that a person placed in a supported living placement out of area after 1 April will generally retain ordinary residence in the area of the placing local authority. A person who moved before 1 April into supported living out of area will in many cases have had their ordinary residence moved to that of their new area, under the National Assistance Act. Their status will not change with the implementation of the Care Act.

Care Act goes live in April

Alongside the transitional order, the government has issued The Care Act 2014 (Commencement No. 4) Order 2015 bringing the bulk of part 1 of the Care Act – which deals with care and support – into force at the start of April.

The implementation of three elements of part 1 will take place on 1 April, 2016:

• funding reforms that will see the introduction of a cap on people’s care costs and a more generous means-test for homeowners receiving care;
• the introduction of a system allowing people to appeal against decisions made in relation to their care and support;
• provisions allowing self-funders with eligible unmet needs to require local authorities to arrange their care in care homes under section 18(3) of the act, with equivalent provisions governing other service settings coming into force on 1 April, 2015.

60 years’ worth of legislation ceases to apply

Under a third order, The Care Act 2014 and Children and Families Act 2014 (Consequential Amendments) Order 2015, the Care Act will replace 60 years’ worth of community care legislation in England from next month.

This order, which requires the approval of both Houses of Parliament, makes clear that the existing suite of legislation – such as the National Assistance Act, the Chronically Sick and Disabled Persons Act 1970 and the NHS and Community Care Act 1990 – will continue to apply in Wales.This will remain the case until 1 April, 2016, when the Social Services and Well-being (Wales) Act 2014 comes into force.

The Chronically Sick and Disabled Persons Act 1970 will also continue to apply to disabled children in England.

The order will be debated by a committee of the House of Commons next Tuesday (24 March).