Clause 13 of the Care Bill provides that there will be national eligibility criteria set by regulations. This will finally put the position established by R v Gloucs CC, ex p Barry on a statutory footing, and will establish 

national standards for local authority care support. It will also end the current situation in which some local authorities have limited themselves to only critical needs, or seek to establish new bands of “super-critical” needs to further limit social care provision. The draft regulations setting out the national eligibility criteria have been published. They appear in the Department of Health’s “Discussion Document” on “Draft national minimum eligibility threshold for adult care and support” (June 2013), available HERE.

The accompanying policy paper states that the new draft criteria are intended to reflect the current practice of most authorities, ie to set the eligibility threshold at the level of critical and substantial needs. While there has been some debate as to the extent to which these new criteria do in fact reflect the current critical and substantial bands, it is of importance that they are intended to do so.

Local authorities will now have to determine whether and if so how to alter their existing eligibility criteria to bring them into line with the new regulations. The regulations provide a floor and not a ceiling, ie LAs can make greater but not less provision than set out in the regulations.

Will LAs need to consult and conduct equalities impact analysis before changing over to the new eligibility criteria? We suggest the following answers to this issue.

If the LA is proposing to make a change of substance to its provision, then it needs to comply with the PSED and consult. However if there is no change of substance to the banding and provision, then this should not be required. For example, if despite the new criteria the LA is continuing to meet all bands just as it was before the new criteria were introduced, then it should not need to consult. If there is no change in substance then the advent of the new criteria without more does not call for consultation. The change of the banding descriptions is a national change and central government will have conducted its own consultation on that change.

If the LA is increasing coverage as a result of the new national standards (for example because it previously provided for critical only, and now it provides for a greater scope of needs) then the LA will need to consult. The fact that the LA is increasing the scope of coverage does not remove the need to consult and comply with the PSED. People may wish to say the LA should go even further than it is proposing to go.