The Care Act 2014 - six months on

November 19, 2015

Has the Care Act 2014 been successful since it came into force? Carolyn Hunnisett talks to LexisNexis about the positives and the negatives of a landmark piece of legislation.

What are the main changes since the Care Act 2014 (CA 2014) came into force?

On 1 April 2015, CA 2014 overhauled the social care system. It changed almost every aspect relevant to the provision of care and support to older people and those with disabilities or vulnerabilities. At the same time, the ‘Care & Support Statutory Guidance’, issued under the CA 2014, came into effect, setting out the regulations that underpin these new provisions.

CA 2014 has introduced national minimum eligibility criteria with a view to removing the postcode lottery. The aim is that people with similar levels of need will now receive similar minimum levels of care and support – no matter where they live. In addition, councils have to work together to make sure individuals do not have a gap in their care if they move to another area in England.

Social care assessments are to be ‘person centred’ and driven by the individual, with a focus on well-being and meeting care outcomes.

Carers have new rights support and increased access to services. Most importantly, safeguarding adults at risk has now been given a statutory footing for the first time with a range of duties that social services must meet.

There is also:

the right to have a personal budget;
the right to have an advocate; and
mandatory deferred payment agreements, so the individual should not have to sell their home to pay for their care.

Has CA 2014 addressed the previous problems of community care law legislation?

The guiding principle of CA 2014 is to ensure an individual’s well-being and prioritise their wishes as being central to any assessment. This is an intentional shift on the part of central government to move social care professionals away from paternalistic assumptions about ‘what is best’ for the individual and away from the application of overly restrictive criteria.

CA 2014 also makes it a statutory requirement to assess and consider adult carers’ needs. Previously, in order to qualify for an assessment, a carer had to prove that the care provided was ‘regular and substantial’. This is no longer the case.

The government also recognised that the fact that there was no legal framework for adult safeguarding had resulted in a lack of clarity about the roles and powers of the statutory agencies. CA 2014 is positive in that it introduces a number of significant changes to demonstrate the government’s commitment to preventing and reducing the risk of abuse or neglect to adults in vulnerable situations. The aim is to support people so they can make informed choices without coercion and to maintain control over their own lives.

Has CA 2014 brought clarity to community care legislation?

Now that safeguarding finally has a statutory footing, there is also a wider definition of financial abuse in a safeguarding context. This now includes people who have:

had money or property stolen;
been defrauded;
been put under pressure in relation to money or other property;
had their money used without their informed consent or authorisation; or
had their money or other property misused.

CA 2014 also introduces the concept of self-neglect as a form of abuse that may warrant safeguarding action. This includes neglecting personal hygiene, health or surroundings, and can be used where hoarding has become a risk to their health and safety.

Have there been any notable successes?

Carers’ rights have been given statutory recognition. Carers are now eligible for support if there is a risk of the caring role breaking down, or a serious risk to their well-being.

If an adult with support needs only satisfies one of the national care ‘outcome measures’, rather than two or more, then they will not be deemed eligible for support. However, a carer’s assessment for that adult’s carer may result in services being provided to the carer. This ultimately benefits both the carer and the adult with support needs.

Have there been any notable failures?

Originally, it was planned that CA 2014 would introduce a capital cap of £72,000 in relation to the maximum amount that any individual would pay for their care costs in their lifetime. This was planned to come into force in April 2016. This has now been delayed until April 2020. The £72,000 cap was an attempt by the government to stem concern and widespread ill feeling about individuals having to use all of their capital to pay for their care home fees. This legislation was rushed through by the Conservative government prior to the General Election. The government are now backtracking as they have realised that this may not be affordable – and that it was too major a change to force upon social services in such a short timescale. This policy change has caused confusion and upset for those who have to pay for their care.

This care cap section of CA 2014 puts a duty on social services to set-up care accounts in order to keep account of all care costs until the £72,000 cap is reached. Individuals are encouraged to initiate social service assessments while still self-funding – to make sure that they do not miss out on the cap. The changes are likely to generate huge volumes of additional work for social care staff and the change cannot therefore take place until there are adequate systems in place.

Are there any unresolved issues practitioners will need to watch out for?

CA 2014 does not provide an ‘outcome’ in relation to the prevention of harm. Many academics believe that this can be dealt with by referring to human rights legislation.

CA 2014 only applies to adults. This was heavily criticised by many different sectors who were concerned about young carers ‘falling through the gap’ if they had to deal with different legislation and departments. However, if a child carer is in ‘transition’ between children and adult services, there is a duty to prepare and consider future needs. CA 2014, s 58–66 set out three new assessments:

assessment of children in transition;
assessment of carers in transition; and
assessment of young carers in transition.

Cases involving children’s rights, if not in the above categories, will need to be determined under the Children and Families Act 2014.

Many practitioners were already concerned at the scope and the detail of this £72,000 care cap. This cap is based just on care costs at a weekly rate set by social services, which will rarely reflect the true market cost of care. The cost of accommodation and food are not included. This means that an individual would have to rack up significant care costs before any outstanding capital is protected.

Carolyn Hunnisett, part of Martin Searle Solicitors' community care law team, was interviewed by Ioan Marc Jones.

This analysis was produced for LexisPSL Local Government with interviewee Carolyn Hunnisett and originally published in LexisPSL Local Government. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor. If you would like to read more quality articles like this, then register for a free 1 week trial of LexisPSL.