By Yogi Amin, Irwin Mitchell
At a time when many councils are planning to make further cuts to social care budgets it is even more important to understand our legal rights to social care. These legal rights are not just for support in the home or in residential care but to support access to the community.
Government policy is clear. As government minister Baroness Barran said to disability rights campaigner Baroness Campbell, in a House of Lords debate in 2019, “local authorities must provide or arrange services, resources and facilities that maximise independence for those who have or are developing care needs”.
More specifically, under section 2 of the Care Act 2014 (the “Care Act”), councils must provide or arrange to provide services, facilities and resources or take any other steps which contributes to preventing, delaying or reducing actual needs or the development of needs for care and support.” Also, the government provides funding to councils to deliver on their Care Act duties, as well a grant to support people with disabilities who accessed the Independent Living Fund (ILF) that closed in June 2015.
Legal rights to access community
Individuals and families who require social care support have legal rights for support to access the community outside of their home – this includes support to work, socialise and play an active role in our communities and care and support family members.
Their ability to obtain social care support to access the community is dependent on understanding legal rights under the Care Act and knowing how to enforce those rights.
Individuals, advocates and families have fought against council cuts to their care and support packages, and UK human rights watchdogs have argued that rights to independent living or community access have been eroded by these cuts.
What does ‘independent living’ mean? The Welsh Government has defined it as meaning “…all disabled people having the same freedom, dignity, choice and control as other citizens at home, work, in education and in the community. It does not mean having to live by yourself or do everything for yourself. It means rights to practical assistance and support to participate fully in society on the same basis as others as well as to voice choice and control over how this is provided. It is about ensuring people of all ages and from all communities are able to maintain independent living, enjoy well-being and access appropriate support when and how they need it.”
This is similar to the right to independent living set out in Article 19 of the UN Convention on the Rights of Persons with Disabilities. The statutory guidance under the Care Act (paragraph 1.19) states that its wellbeing principle – set out in section 1 – is designed to cover the key components of Article 19.
What are the relevant Care Act duties?
Anyone can request an assessment by contacting their local council. The council must carry out an assessment where it appears that an adult may have needs for care and support.
Duty to assess
Councils must identify and assess care and support needs and provide a copy of the eligibility decision in writing (section 13, Care Act).
The assessment process under section 9 of the Care Act should always assess “the needs arising from the individual’s own identity and characteristics, whether or not they are, at the time of the assessment, being met”, as the High Court set out in 2019. This means that, even if the needs are currently being met with support given by friends, family or a charity, those needs must still be recorded in writing on the care assessment. This will then allow a focus on whether that support is appropriate, will continue or be sustainable.
Duty to meet unmet eligible needs
All councils in England must meet the eligible social care needs of people with a disability, where these are not being or cannot be met by carers or other organisations (section 18, Care Act). The duty to meet eligible needs is one that exists regardless of the resource problems a council may have.
Under the eligibility regulations, care and support needs are ‘eligible’ if they:
- arise from or are related to a physical or mental illness or impairment;
- result in the adult being unable to achieve two or more specified outcomes (see list below); and, as a result,
- have a significant impact on the adult’s wellbeing.
The term ‘significant’ is not defined and, says the statutory guidance, should be given its everyday meaning. To decide whether there is a significant impact on wellbeing, the council must consider the impact a failure to meet needs would have on the following outcomes:
- Managing and maintaining nutrition;
- Maintaining personal hygiene;
- Managing toilet needs;
- Being appropriately clothed;
- Being able to make use of the adult’s home safely;
- Maintaining a habitable home environment;
- Developing and maintaining family or other personal relationships;
- Accessing and engaging in work, training, education or volunteering;
- Making use of necessary facilities or services in the local community including public transport and recreational facilities or services;
- Carrying out any caring responsibilities the adult has for a child.
Being unable to achieve an outcome includes having considerable difficulty in achieving it, or only being able to achieve it with assistance.
All eligible needs are equal
Councils must meet all unmet eligible needs. They cannot, for example, meet a need to provide care to maintain a habitable home and refuse to meet needs to access volunteering or community services if someone is assessed as having eligible needs for both.
In a recent case involving Westminster Council, the Local Government and Social Care Ombudsman found the authority was at fault. Although the care and support plan said Mr F needed support to access the community, there was no provision for this. He needed help to get out and access services and go on regular assisted walks to help with his physical and mental health needs.
The ombudsman said that the council appeared to have decided some needs are more important than others, stating: “This is contrary to the Care Act, which places equal importance on all eligible needs – it is designed to ensure councils do not pick and choose which they meet.”
A council must promote the wellbeing of the individual when carrying out its duties under the Care Act. The guidance says that in doing so, a council “…must not ignore or downplay the importance of a person’s own opinions in relation to their life and their care. Where particular views, feelings or beliefs (including religious beliefs) impact on the choices that a person may wish to make about their care, these should be taken into account.”
The guidance also says that outcomes such as “accessing ….volunteering or community services or facilities including transport and recreation” include councils being required to “consider the adult’s ability to get around in the community safely and consider their ability to use such facilities as public transport, shops or recreational facilities when considering the impact on their wellbeing”.
Under the outcome of developing and maintaining family or other personal relationships, the guidance states that councils should “consider whether the adult is lonely or isolated, either because their needs prevent them from maintaining the personal relationships they have or because their needs prevent them from developing new relationships”.
Risk of legal challenge
Therefore, if councils reject a request to identify an eligible need for support following a wish to access outdoor walks, outdoor trips, attend a volunteering role, religious activity, family or friendship group events, and it appears the eligibility criteria has not been followed, then a legal challenge can be brought.
Councils must also provide advice and information to prevent, delay and reduce needs for care and support developing, for people with or without eligible needs (seciton 13, 24 and 25, Care Act). So if the council is not looking ahead to predict what could significantly impact an individual’s wellbeing if a particular need is not met, then they would be acting unlawfully and there could be a challenge.
Finally, the ombudsman has recently confirmed that councils should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles
Many people will be seeking a review of their care package as we come out of the pandemic this year. They will be looking for social care support to restart community living. It is important that their legal rights to support are understood and promoted.
Yogi Amin is partner and national head of public law at Irwin Mitchell