Back to Blog

The Care Act 2014 – A Whole New World?

By Solicitor, Court of Protection

Some four months on from the arrival of the Care Act, perhaps it’s time to reflect on the sweeping changes it has brought to the community care system in England.

Replacing laws going back to 1948, the Act introduced an entirely new structure to the way that local authorities assess, plan and fund social care and support for vulnerable, elderly and disabled adults and their carers.

The Act encourages joint working between local authorities and NHS bodies and better communication between them and the people in need of care, and their carers – vital if those most in need of care are to secure the essential services they need.

We welcome the introduction of a much clearer basis for the assessment of care needs but also the assessment of carers’ needs, offering the opportunity of more help for carers – much needed and long overdue, given the invaluable work undertaken by carers throughout the social care system. Without their dedication and commitment, the system would likely collapse.

Equally welcome are the provisions in the Act relating to adult safeguarding and advocacy services, which require local authorities to investigate and act upon any issues or concerns about the neglect or abuse of vulnerable people and offer them the support of an advocate if they would struggle to have a voice.

All these and many more, changes to the community care system come with structured assessment, planning and funding processes founded on a number of key principles, one of the most significant being the principle of wellbeing.

The Principle of Wellbeing

Local authorities are now under a duty to ensure that a person’s wellbeing is at the centre of all it does.

The principle of wellbeing is a broad concept which should, for example, focus on personal dignity and control by an individual over their day-to-day life, as well as participation in work, education, training or recreation, and their social and economic wellbeing.

One of the aims of the Act is to empower people to drive the direction of their own care assessment and planning – and that local authorities should take full account of their wishes and the outcomes they seek.

Many people have criticized local authorities in the past for taking an overly restrictive and paternalistic approach to providing and funding care. For people who need care and support and strive to have as independent a life as possible, being able to direct the type, structure and funding of their care on the basis of their wellbeing can only be a good thing.

National Eligibility Criteria

One of the most significant changes introduced by the Care Act is the introduction of national eligibility criteria designed to ensure consistency of decision-making.

Before the Care Act, it was up to individual local authorities to interpret broad guidance and criteria. Now, for the first time, new criteria determine exactly when someone should be entitled to help and how decisions are to be made about the provision of essential care services.

Essentially the criteria are based on whether someone is unable to achieve listed outcomes, as a consequence of which there is, or is likely to be, significant harm.

In the run up to the Act, there was much talk of this eligibility criteria and how it might eradicate what many perceived as a ‘postcode lottery’ in terms of differing approaches to the question of need and funding.

Sadly, whilst greater clarity of decision making and robust and clear guidance as to interpretation is greatly welcome, it is difficult to see how interpretation of the new criteria will differ significantly from the past, given the element of discretion which rightly still rests with local authorities.

Poor judgement, lack of rigour in gathering evidence and flawed decision making will usually defeat good intentions.

Conclusion

There are many parts of the Act and guidance that offer clarity and hope.

Whilst it remains to be seen quite how the Act will impact upon local authorities, people in need of care and their carers, it is surely not being overly bleak or cynical to question whether the excellent opportunity afforded by the Act – in terms of a new system, new structure and new way of thinking about care – could easily be lost amidst the difficulties created by continuing austerity and budget cuts, and threats to the Human Rights Act.

Any care system driven by budgets alone, without genuine regard for the principles of the Act, would not only be unworkable and unfit for purpose, but inherently unfair and unlawful.

We can only hope that the opportunities offered by the Act are not lost behind a smokescreen of budget cuts and the undermining of human rights.

Let’s see.

Liz Perry is a Court of Protection Lawyer at Slater and Gordon UK, specialising in disability rights, mental capacity law, community care and other human rights issues.

For more information or legal assistance call freephone 0800 916 9046 or contact us online. Our contact centre is open 24 hours 365 days a year.

Comments