The Care Act 2014, which received Royal Assent on 14 May 2014, will impose new obligations on local authorities in respect of the provision of social care.
The Care Act 2014 (“the Act”) contains five Parts and eight Schedules. Part 1 is about care and support. Its sets out a framework for the provision of adult social care in England. Part 2 is about care standards. It reflects the Government’s response to the report of the Mid-Staffordshire NHS Foundation Trust Public Inquiry. Part 3 is about health. It establishes Health Education England (HEE) and the Health Research Authority (HRA) as non-departmental public bodies. Part 4 is about health and social care. It establishes a fund, the Better Care Fund, for the integration of care and support with health services. Part 5 is a general part, dealing with various technical matters.
The Act is said to apply to England and Wales but in practice many of the provisions in Parts 1 and 2 apply in England only. The National Assembly for Wales has passed the Social Services and Well-Being (Wales) Act 2014, relating to social care in Wales. Provisions relating to cross-border placements, some provisions on provider failure and the provision relating to the application of the Human Rights Act 1998 also apply to Wales. In Part 3, the majority of provisions relating to Health Education England and the provisions relating to the Health Research Authority apply to Wales as well as England.
The provisions relating to cross-border placements, some provisions on provider failure and the provision relating to the application of the Human Rights Act 1998 also apply to Scotland and Northern Ireland. The provisions relating to the Health Research Authority extend to the whole of the United Kingdom.
Care and Support
The Act imposes a duty on local authorities in England to promote an individual’s well-being when exercising a function under Part 1 of the Act in the case of an individual.
Well-being is described in section 1(2) of the Act as meaning well-being relating to any of the following:
- Personal dignity (including treatment of the individual with respect).
- Physical and mental health and emotional well-being.
- Protection from abuse and neglect.
- Control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided).
- Participation in work, education, training or recreation.
- Social and economic well-being.
- Domestic, family and personal relationships.
- Suitability of living accommodation.
- The individual’s contribution to society.
A local authority in England is also required to have regard to the following factors when exercising a function under Part 1:
- The importance of beginning with the assumption that the individual is best-placed to judge the individual’s well-being.
- The individual’s views, wishes, feelings and beliefs.
- The importance of preventing or delaying the development of needs for care and support or needs for support and the importance of reducing needs of either kind that already exist.
- The need to ensure that decisions about the individual are made having regard to all the individual’s circumstances (and are not based only on the individual’s age or appearance or any condition of the individual’s or aspect of the individual’s behaviour which might lead others to make unjustified assumptions about the individual’s well-being).
- The importance of the individual participating as fully as possible in decisions relating to the exercise of the function concerned and being provided with the information and support necessary to enable the individual to participate.
- The importance of achieving a balance between the individual’s wellbeing and that of any friends or relatives who are involved in caring for the individual.
- The need to protect people from abuse and neglect.
- The need to ensure that any restriction on the individual’s rights or freedom of action that is involved in the exercise of the function is kept to the minimum necessary for achieving the purpose for which the function is being exercised.
Local authorities must take steps that they consider will prevent, delay or reduce needs of adults and carers for care and support. In performing that duty, local authorities must have regard to the importance of identifying services, facilities and resources that are already available in their area and the importance of identifying adults and carers in their area with needs for care and support that are not being met.
Local authorities have a duty to exercise their functions under Part 1 of the Act with a view to promoting integration with health provision and health-related provision if they consider that this would promote the wellbeing of adults with care and support needs and carers in their area, prevent or delay the needs of adults and carers in their area for care and support, and improve the quality of care and support for adults and carers in their area.
Local authorities are required to provide an information and advice service relating to care and support for adults and carers. This must include information on the system, the choice of types of care and support and the choice of providers, how to access care and support, how to access independent financial advice relevant to meeting needs for care and support, and how to raise concerns about the safety or well-being of an adult with needs for care and support.
Local authorities have a duty to promote the efficient and effective operation of a market in care and support services, in order to ensure that people in their area who wish to access services have a variety of providers and a variety of high quality services to choose from and sufficient information to enable them to make informed decisions about meeting care and support needs.
Local authorities are required to co-operate with “relevant partners” and with other persons they consider appropriate in the exercise of their care and support functions. “Relevant partners” include:
- Other local authorities.
- NHS bodies in a local authority’s area.
- The Minister of the Crown exercising functions in respect of social security, employment and training in relation to England.
- The chief officer of police for a police area in a local authority’s area.
- The Minister of the Crown exercising functions in respect of prisons in relation to England.
- A relevant provider of probation services in relation to a local authority’s area.
- Any other person specified in regulations.
If a local authority requests the co-operation of a partner or a partner requests the co-operation of a local authority, the partner or local authority as applicable must co-operate as requested unless this would be incompatible with their own functions and duties.
Having set out these general responsibilities relating to care and support, Part 1 of the Act contains further detailed requirements, including in the following areas:
- Assessing needs.
- Imposing charges and assessing financial resources.
- Next steps after assessments.
- Direct payments.
- Deferred payment agreements.
- Continuity of care and support when adults move.
- Establishing the ordinary residence of a person.
- Safeguarding adults at risk of abuse or neglect.
- Provider failure.
- Cross-border cases.
- Market oversight.
- Transition for children to adult care and support.
- Independent advocacy support.
- Enforcement of debts.
- Review of funding provisions.
Part 2 of the Act makes amendments, relating to care standards, to the following pieces of legislation:
- Health and Social Care Act 2008.
- Health and Social Care Act 2012.
- National Health Service Act 2006.
Part 2 also creates a criminal offence, which a care provider of a specified description commits if it supplies, publishes or otherwise makes available information of a specified description which is required under a statutory or other legal obligation and that information is false or misleading in a material respect. It is a defence for a care provider to prove that it took all reasonable steps and exercised all due diligence to prevent the provision of false or misleading information. This is expected to apply when care providers can show that they have made a genuine mistake or administrative error and that they had adequate procedures in place to prevent the provision of false or misleading information.
Part 3 of the Act makes provision to establish Health Education England, and the Health Research Authority.
Health Education England is a non-departmental public body, with responsibility for the planning and delivery of education and training for the National Health Service and public health workforce. It is also responsible for establishing Local Education and Training Boards. The Act also abolishes the special health authority called Health Education England.
The Act establishes a new body known as the Health Research Authority. This replaces the special health authority that was previously known as the Health Research Authority and takes on its functions.
Part 3 also amends legislation relating to the functions of Trust Special Administrators.
Integration between health and social care
Part 4 of the Act is about the integration between health and social care.
This Part amends the National Health Service Act 2006 to make provision for the use of funding for objectives relating to service integration.
Part 4 also amends the Health and Social Care Act 2012 to impose restrictions on the dissemination of information by the Health and Social Care Information Centre. The Health and Social Care Information Centre may only disseminate information for the purposes of the provision of health care or adult social care or for the promotion of health.
Part 5 of the Act contains some general provisions.
Most of the provisions in the Act require an order from the Secretary of State to bring them into force. We await the emergence of such orders.
The Department of Health has launched a consultation on draft guidance and draft regulations relating to Part 1 of the Act. These regulations would bring into effect from April 2015 various provisions relating to care and support reforms. The consultation closes on 15 August 2014. The consultation document and draft regulations and guidance are available at: https://www.gov.uk/government/consultations/updating-our-care-and-support-system-draft-regulations-and-guidance