We review the implications of the Care Act 2014 and the Care and Support (Charging and Assessment of Resources) Regulations 2014 for defendants in clinical negligence and personal injury claims.
The Act consolidates existing law in relation to health and social care and crystallises many duties of local authorities (LAs) on which previous care legislation has been silent. It has been welcomed by both carers and individuals in need of care and support.
The Act only applies to adults who receive care and their carers. The Children and Families Act 2014 has proceeded alongside the Act and the two pieces of legislation have adopted a similar approach to care reform. In addition, the Regulations set out detailed provisions in relation to charging for care and support.
Impact on claims
In the majority of claims provision for care is awarded on a privately funded basis and so the potential effects may not be immediately apparent.
A move towards higher quality, far-reaching care may mean that the amount that defendants pay out for care may start to reduce. If a claimant receives quality care before they bring a claim, such as through the Rehabilitation Code, their symptoms may improve thus reducing the burden on defendants at a later stage. In addition, whilst privately funded care regimes may not directly improve as a result of improvements in standards in the public sector, the Act may help to promote a culture of high quality care and support.
However, if the quality of care increases in the public sector, it may cost defendants more to replicate this in the private sector.
The Act is being brought into force in two stages. The majority of the Act came into force on 1 April 2015 and the remaining provisions are estimated to be in force in April 2020. The provisions are far-reaching and the most significant are outlined below.
In force from 1 April 2015:
- Needs assessments: where it appears that an individual needs care and support, the LA now has a duty to assess those needs (s.9(1)). The Department of Health has encouraged LAs to undertake this assessment as soon as possible, irrespective of the individual’s financial resources. If the LA concludes that the individual does need care and support, it must then apply the new eligibility criteria.
- Eligibility criteria: the eligibility criteria for social care provisions have been widened.
- Individual wellbeing: LAs now have a general duty to promote an individual’s wellbeing. Section 1 defines this as encompassing personal dignity, protection from abuse and neglect, control over everyday life and physical and emotional wellbeing. This concept also forms part of the eligibility criteria.
- Additional rights: people receiving care from their LA have been granted additional rights under the Human Rights Act 1998.
- Duty to provide emergency care: the Act has introduced a temporary duty on LAs to act immediately to take over from care providers in their area that are failing or have failed to provide adequate care (s.48).
In force from 1 April 2020:
- The ‘care cap’: s.15 introduces a maximum lifetime cap of £72,000 on the amount that an individual will be expected to pay towards their own care costs. Any care costs beyond this will be paid for by the LA. An individual’s cap is established by means testing, including an assessment of their assets, which can include their home. Those who develop care needs whilst they are aged under 25 will, however, not be subject to the cap for the whole of their lifetime.
Care and Support (Charging and Assessment of Resources) Regulations 2014
The Regulations came into force on 1 April 2015. They maintain the previous position that lump sum payments received on account of damages for personal injuries are disregarded for the purposes of assessing an individual’s ‘income’ as part of a needs assessment.
However, periodical payments are also now disregarded under the Regulations. This may constitute double recovery if a claimant seeks LA funding and their periodical payment is to be disregarded when assessing eligibility. Some LAs are believed to be challenging this new change and we must wait and see the outcome.
If the Regulations do not change, then in practice defendants should seek a Peters undertaking or reverse indemnity if they wish to avoid double recovery.