CARE ACT 2014
Following the needs and carer’s assessment and determination of eligibility, a care and support plan (for an adult with care and support needs) or a support plan (for a carer) must be provided where a local authority meets a person’s needs.
This chapter was updated in December 2016 to reflect the revised Care and Support Statutory Guidance. There are language changes only; there is no change to practice.
Care and support should put people in control of their care, with the support that they need to enhance their wellbeing and improve their connections to family, friends and community. A vital part of this process for people with ongoing needs which the local authority is going to meet is the care and support plan or support plan in the case of carers. People must be involved throughout the planning process, and should be given every opportunity to take joint ownership of the development of the plan with the local authority if they wish, and the local authority agrees.
The person, will play a strong proactive role in planning if they choose to. The plan ‘belongs’ to the person it is intended for. The local authority role is ensure the production and sign off of the plan to ensure that it is appropriate to meet the identified needs.
The personal budget gives everyone clear information regarding the cost of care and support and the amount that the local authority will make available, in order to help people to make better informed decisions as to how needs will be met (see Personal Budgets).
Direct payments must be clearly explained to the person, so that they can make an informed decision about the level of choice and control they wish to take over their care and support. This means offering the choice throughout the process and giving examples of how others have used direct payments, including direct peer support, and user led organisations (see Direct Payments).
Some people will need assistance to make plans and decisions, and to be involved in the planning process. Supported decision making options and choices should be presented simply and clearly.
Independent advocates must be involved early in the assessment and planning process for those who have substantial difficulty in engaging with the process, and have no other means of accessing support through friends or relatives. If the person’s substantial difficulty only becomes apparent during the assessment, an advocate must be instructed as soon as this becomes known (see Independent Advocacy).
The guiding principles in the development of the plan are that the process should be person centred and person led, in order to meet the needs and achieve the outcomes of the person in ways that work best for them as an individual or as part of a family.
The process and the outcomes should be built holistically around:
These principles apply irrespective of the extent to which the person chooses or is able to actively direct the process.
Person centred care and support planning applies to everyone whose needs are being met by the local authority, regardless of the setting in which the needs are met. For example, people in care homes must also receive a care and support plan and personal budget (see Personal Budgets).
For the purposes of this chapter ‘the plan’ means either the care and support plan (in the case of adults with care and support needs) or the support plan (in the case of carers).
‘Meeting needs’ is an important concept under the Care Act and moves away from a service led assessment of need. There are a variety of approaches in how needs can be met, developed through care and support planning. The concept of ‘meeting needs’ is intended to be broader than just a duty to provide or arrange a particular service. Because a person’s needs are specific to them, there are many ways in which their needs can be met. The intention behind the legislation is to encourage this diversity, rather than point to a service or solution that may be neither what is best nor what the person wants.
The purpose of the care and support planning process is to agree how a person’s needs should best be met.
There are a number of options for how needs could be met, and the use of these will depend on the person’s circumstances. This may include:
Individual Service Funds are budgets held by a provider, rather than by the local authority or the individual. The local authority makes a payment to the provider, which then holds a budget over which the individual has control (see Personal Budgets).
The local authority provides or arranges care and support in many forms, including traditional ‘service’ options, such as care homes or home care, other types of support such as assistive technology in the home or equipment / adaptations and care and support which are available universally, including those which are not directly provided by the local authority.
For example needs could be met by a service which is provided by the local authority to prevent or reduce needs, or needs could be met, by putting a person in contact with a local community group or voluntary sector organisation.
The local authority may provide a ‘brokering’ a service on behalf of an individual in certain cases. Brokering services are offered by the local authority or organisations which are independent of the local authority. Brokering involves the local authority supporting the person to make a choice about the provider of their care, and to enter into a contract with that provider. The local authority does not need to hold the contract with the provider, but is be required to assure itself that the chosen provider and terms of the contract were appropriate to meet the person’s needs.
The local authority needs to be satisfied both that this is an effective way of meeting the person’s needs, and that the person was in agreement to this approach being used.
It is likely that brokering would only be an effective way of meeting a person’s needs in exceptional circumstances, for example where a person is fully funding their own care and wishes to retain control of the contract with their provider, but wants the local authority to meet their needs and the local authority has agreed to do so.
If there is a risk that a person’s needs would not be met effectively by means of brokering, the local authority should discount it as an option and proceed with other ways of meeting that person’s needs, such as direct commissioning of services from a provider.
In considering such an option, person must be willing and able to manage such arrangements now and in the future, including their ability to pay the charges due (for example, to mitigate against a future loss of capacity or disposal of their assets, such that the local authority may be required to take over the contract with the provider).
The local authority would continue to support the person in meeting any other needs, offering ongoing support and keeping the arrangements under review to ensure that the needs were met. The person would have a care and support plan as usual.
Whilst the local authority meets their needs, the person holds the contract with the provider.
In case of a direct payment, the money for commissioning the service comes from the local authority, whereas in the case of brokering it comes from the individual directly. This option, therefore, would only likely be of use for meeting the needs of people who are fully funding their own care but ask the local authority to meet their eligible needs, and who are not using alternative arrangements such as an individual service fund.
Local authorities should consider how needs may be met beyond the provision, or arrangement, of services by the authority. For example, needs may be met by a carer, in an educational establishment or by another institution other than the local authority. In these circumstances the local authority remains under a duty to meet the person’s eligible needs. If however, the alternative means of meeting the needs is in place and the authority is satisfied that this alternative means is, in fact, meeting the person’s eligible needs, then the authority may not need to arrange or provide any services to comply with that duty.
The local authority should still record those needs through the assessment process, determine whether the needs meet the eligibility criteria and keep under review.
The local authority must not meet needs by providing or arranging health service or facility which is required to be provided by the NHS, or doing anything under the Housing Act 1996. The aim of these provisions is to avoid duplication in the provision of services and facilities, and provide clarity about the limits of care and support, and the circumstances in which care and support should be provided as opposed to health services or housing services.
If a person is entitled to a service which could meet their needs, but they are not availing themselves of these services, the needs remain ‘unmet’. Therefore the local authority has a duty to meet the needs until those needs are actually met by the other service. Local authorities should inform and advise people on accessing all entitlements as soon as possible, working collaboratively with other local services to share information.
The local authority does not have to meet any needs that are being met by a carer. However, the local authority must identify, during the assessment process, those needs which are being met by a carer at that time, and whether those needs meet the eligibility criteria. Any eligible needs met by a carer are not required to be met by the local authority, for so long as the carer continues to do so. The care and support plan should record which needs are being met by a carer, and should consider putting in place contingency plans to respond to any breakdown in the caring relationship.
Where the local authority is not required to meet needs, it nonetheless may use its powers to meet any other needs. This may include, for example, meeting needs which are not ‘eligible’ (i.e. those which do not meet the eligibility criteria), or meeting eligible needs in circumstances where the duty does not apply (for example, where the person is ordinarily resident in another area). Where the local authority exercises such a power to meet other needs, the same duties would apply regarding the next steps, and therefore a plan must be provided.
If the local authority decides not to use its powers to meet other needs, it must give the person written explanation for taking this decision, and should give a copy to their advocate if the person requests. If the person cannot request this, then a copy should be given to the person’s advocate or appropriate individual if this in the best interests of the person. This explanation must also include information and advice on how the person can reduce or delay their needs in future. This should be personal and specific advice based on the person’s needs assessment and not a generalised reference to prevention services or signpost to a general website. For example, this should involve consideration of alternative ways in which a person could reduce or delay their care and support needs, including signposting to support within the local community. Authorities may choose to provide this information after the eligibility determination, in which case this need not be repeated again. At whatever stage this is done, in all cases the person must be given a written explanation of why their needs are not being met. The explanation provided to the person must be personal to and should be accessible for the person.
Where a local authority is meeting some needs, but not others, a combination of the two approaches above must be followed. The person must receive a care and support plan for the needs the local authority is required, or decides to meet that accords to the Act and this guidance, and which also includes a tailored package of information and advice on how to delay and/or prevent the needs the local authority is not meeting. This information should be given to the person in a format accessible to them so they are clear what needs are being met by the local authority.
The plan must detail:
The local authority should encourage creativity in planning how to meet needs, and refrain from judging unusual decisions as long as these are determined to meet needs in a reasonable way.
Joint planning does not mean a 50:50 split; the person can take a bigger share of the planning where this is appropriate and the person wishes to do so. A further principle is that planning should be proportionate.
Information must be made available in ways that are meaningful to the person, and that they must have support and time to consider their options. A named contact or lead professional should be considered both as part of the care planning process, so that the person knows how to contact the local authority. The planning choices offered could include:
Where the person has substantial difficulty in being actively involved with the planning process, and they have no family and friends who are able to support them, the local authority must provide an independent advocate to represent and support the person (see Independent Advocacy). Likewise, where a person with specific expertise or training in a particular condition (for example, deafblindness) has carried out the assessment, someone with similar knowledge (and preferably the same person to ensure continuity) should also be involved in production of the plan.
In ensuring that the process is person centred, the local authority should ensure that any staff responsible for developing the plan with the person are trained in the Mental Capacity Act 2005 if appropriate, familiar with best practice, and that there is sufficient local availability of independent advocacy and peer support, including access to social work advice.
When developing the plan, there are certain elements that must always be incorporated in the final plan, [unless excluded by the Care and Support (Personal Budget Exclusion of Costs) Regulations 2014]. These are:
These requirements should not lead to a lengthy process where this is not necessary, or decisions that cannot be changed easily. Maximum flexibility should be incorporated to allow adjustment and creativity, for example by allowing people to include personal elements into their plan which are important to them (but which the local authority is not under a duty to meet), or by developing the plan in a format that works for the person rather than a standard template.
Consideration of the needs to be met should take a holistic approach that covers aspects such as the person’s wishes and aspirations in their daily and community life, rather than a narrow view purely designed to meet personal care needs.
Consideration of needs should also include the extent to which the needs or a person’s other circumstances may mean that they are at risk of abuse or neglect. The planning process may bring to light new information that suggests a safeguarding issue, and therefore lead to a requirement to carry out a safeguarding enquiry (see Adult Safeguarding). Where such an enquiry leads to further specific interventions being put in place to address a safeguarding issue, this may be included in the care and support plan.
In considering the person’s needs and how they may be met, the local authority must take into consideration any needs that are being met by a carer. The person may have assessed eligible needs which are being met by a carer at the time of the plan – in these cases the carer must be involved in the planning process. Provided the carer remains willing and able to continue caring, the local authority is not required to meet those needs. However, the local authority should record the carer’s willingness to provide care and the extent of this in the plan of the person and also the carer, so that the authority is able to respond to any changes in circumstances (for instance, a breakdown in the caring relationship) more effectively. Where the carer also has eligible needs, the local authority should consider combining the plans of the adult requiring care and the carer, if all parties agree, and establish if the carer requires an independent advocate.
Local authorities should have regard to how universal services and community based and / or unpaid support could contribute to the factors in the plan, including support that promotes mental and emotional wellbeing and builds social connections and capital. This may require additional learning and development skills and competencies for social workers and care workers which local authorities should provide.
Authorities are free, and are indeed encouraged, to include additional elements in the plan where this is proportionate to the needs to be met and agreed with the person the plan is intended for. For example, some people may value having an anticipated review date built into their plan in order for them to be aware of when the review will take place. As detailed in the review chapter, it is the expectation that the plan is reviewed no later than every 12 months, although a light touch review should be considered 6-8 weeks after the plan and personal budget have been signed off.
The plan should be proportionate to the needs to be met, and should reflect the person’s wishes, preferences and aspirations. However, local authorities should be aware that a ‘proportionate’ plan does not equate to a light touch approach, as in many cases a proportionate plan will require a more detailed and thorough examination of needs, how these will be met and how this connects with the outcomes that the adult wishes to achieve in day to day life.
For example, the person may have fluctuating needs, in which case the plan should make comprehensive provisions to accommodate for this, as well as indicate what contingencies are in place in the event of a sudden change or emergency. This should be an integral part of the care and support planning process, and not something decided when someone reaches a crisis point. Furthermore, specific consideration should be given to how planning is conducted in end of life care.
In all cases, additional content to the plan must be agreed with the adult and any other person that the adult requests, and should be guided by the person the plan is intended for. There should also be no restriction or limit on the type of information that the plan contains, as long as this is relevant to the person’s needs and/or outcomes. It should also be possible for the person to develop their plan in a format that makes sense to them, rather than this being dictated by the recording requirements of the local authority.
In developing the plan, the local authority must inform the person which, if any, of their needs may be met by a direct payment (see Direct Payments). The local authority should provide the person (and/or their independent advocate or any other individual supporting the person, if relevant and if the person wishes this) with appropriate information and advice concerning the usage of direct payments, how they differ from traditional services, and how the local authority will organise the payment (for example an explanation of the direct payment agreement or contract, and how it will be monitored). This advice should also include detail such as:
This information should assist the person to decide whether they wish to request a direct payment to meet some or all of their needs and should be available at various points in the process to ensure people have the best opportunities possible to consider how direct payments may be of benefit to them.
In addition to taking all reasonable steps to agree how needs are to be met, the local authority must involve the person the plan is intended for, the carer (if there is one), and / or any other person the adult requests to be involved.
Where the person lacks capacity, the local authority must involve any person who appears to the authority to be interested in the welfare of the person and should involve any person who would be able to contribute useful information.
An independent advocate must be provided where the criteria applies (see Independent Advocacy).
The person, and their carers, are well placed to identify care and support which would best fit into their lifestyle and help them to achieve the day to day outcomes they identified during the assessment process.
Consideration should be given to include a prompting the person during the initial stages of the planning process to ask whether there is anyone else that they would like to be involved.
Where the person lacks capacity, the local authority should make a best interests decision about who else should be involved (see Mental Capacity).
The level of involvement should be agreed with the individual and any other party they wish to involve and should reflect their needs and preferences.
This may entail local authorities involving the person through regular planning meetings, or there may be instances where telephone conversations, video conferencing, or other means may be appropriate.
Support of speech and language therapists or other specialists such as interpreters may also be needed.
Some people will need little help to be involved, others will need much more. Social workers or other relevant professionals should have a discussion with the person to get a sense of their confidence to take a lead in the process and what support they feel they need to be meaningfully involved.
The person should be supported to understand what is being discussed and what options are available for them. The local authority should make sure that a person’s lack of confidence to take a lead in the process does not limit the extent to which they can play an active role, if they wish to do so. Where they have substantial difficulty in being actively involved in the process, then they should be assisted by a family member or friend. If the person already has an advocate, whose role has been to support the person on matters not under the Care Act, then it may be appropriate for them to support the individual’s involvement and represent them. If an advocate is required under the Mental Capacity Act 2005 (MCA) as well as the Care Act, then the instruction, appointment and qualification of the advocate must meet the requirements of the MCA. The local authority must instruct an independent advocate if there is no one to represent and support the person’s involvement (see Independent Advocacy). This duty arises if the person would, without the representation and support of an independent advocate, experience substantial difficulty in any of the following:
There may be cases where a person who has substantial difficulty in the above, has no family or friend who can help, and therefore requires an independent advocate to understand the relevant information provided by the local authority, and to be able to use it to effectively plan for their care and support.
Where a plan is being jointly prepared by the local authority and the person whose plan it is, or the local authority and a third party, the local authority should ensure that relevant information is shared securely, promptly and in accordance to the Data Protection Act to allow the plan to be prepared in a timely fashion.
Each partner should be clear about their role. For example, the person may need help to weigh up different service options to understand what each involves and to be able to choose the most appropriate and least restrictive option possible.
In some circumstances it may not be appropriate to jointly prepare the plan. For example, a person may not wish their family to be involved, or the authority may be aware that family members may have conflicting interests, or the person may have asked the local authority to prepare the plan with someone who lives far away from the person and even with the assistance of email, phone and other methods of communication is unable to prepare the plan in a timely fashion.
The test for allowing the person and others to prepare the plan jointly with the local authority should start with the presumption that the person at the heart of the care plan should give consent for others to do so. Safeguarding principles must be included in order to ensure that there is no conflict of interest between the person and the third party they wish to involve to prepare the plan jointly with (see Adult Safeguarding).
Where a person lacks capacity and cannot consent to third parties jointly preparing the plan, the local authority must always act in the best interests of the person requiring care and support.
Good person centred support planning is particularly important for people with the most complex needs. Many people receiving care and support have mental impairments, such as dementia or learning disabilities, mental health needs or brain injuries. The principles of the Care Act apply equally to them, in addition to the principles and requirements of the MCA if the person lacks capacity (see Independent Advocacy).
The MCA requires local authorities to assume that people have capacity and can make decisions for themselves, unless otherwise established. Every adult has the right to make his or her own decisions in respect of his or her care plan, and must be assumed to have capacity to do so unless it is proved otherwise. This means that local authorities cannot assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability (see Mental Capacity).
Plans should not be developed in isolation from other plans (such as plans of carers or family members, or Education, Health and Care plans) and should have regard to all of the person’s needs and outcomes when developing a plan, rather than just their care and support needs.
Where other plans are present or are being completed, these can be combined if appropriate. This should be considered early on in the planning process (at the same time as considering the person’s needs and how they can be met in a holistic way) to ensure that the package of care and support is developed in a way that fits with what support is already being received or developed. The plan should only be combined if all parties to whom it is relevant agree and understand the implications of sharing data and information. Consent should be obtained from all parties involved, and the combination of plans should aim to maximise outcomes for all involved.
Where one of the plans to be combined is for a child (below 18 years old), the child must have capacity to agree to the combination, or if lacking capacity, the local authority must be satisfied that the combination of plans would be in the child’s best interests. If there is a conflict of interest (for example a parent does not wish to support their 17 year old daughter’s wish for greater independence) it may not be in their best interests (see Transition to Adult Care and Support).
The local authority may be undertaking care and or support planning for two people in the same household who require independent advocacy to facilitate their involvement.
If both people have the capacity to consent to having the same advocate, and the advocate and the local authority both consider there is no conflict of interest, then the same advocate may support and represent the two people.
If either person lacks the capacity to consent to having the same advocate, the advocate and local authority must both ensure that using the same advocate would not raise a conflict of interest and would be in the best interests of both persons (see Deprivation of Liberty).
Consideration should also be given to how plans could be combined where budgets are pooled, either with people in the same household, or between members of a community with similar care needs where this is appropriate and all parties agree (see Personal Budgets).
Pooling arrangements should not be restricted to individuals using the same provider. Networks of pooling arrangements should be encouraged to bring groups of people together in a more effective manner.
Where it has been agreed to combine the plan with plans relating to other people, it is important that the individual aspects of each person’s plan are not lost in the process of combining plans. The combined plan should reflect the individual needs and circumstance for each person involved, as well as any areas where a joint approach has been agreed to meet needs in a more effective way.
Plans can be combined in cases where the person is receiving both local authority care and support and NHS health, for instance a person with mental disorder who meets the criteria for care and support under the multi-agency Care Programme Approach.
The introduction of personal health budgets in health, similar to personal budgets in social care, provides a tool to enable integrated health and care provision which focuses on what matters most to the person.
Local authorities should provide information to the person of the benefits of combining health and social care support, and work with health colleagues to combine health and care plans wherever possible.
In combining plans, whether among people or organisations, it is vital to avoid duplicating process or introducing multiple monitoring regimes. Information sharing should be rapid and seek to minimise bureaucracy.
Local authorities should work alongside health and other professionals (such as housing) where plans are combined to establish a ‘lead’ organisation who undertakes monitoring and assurance of the combined plan (this may also involve appointing a lead professional and detailing this in the plan so the person knows who to contact when plans are combined).
The local authority should not introduce systems that place any undue burden on the person, or that undermine the joint preparation of plans, such as excessive quality control. The local authority’s role where the person or third party are undertaking the preparation of the plan jointly with the local authority includes:
This may involve providing materials and approaches to support people jointly preparing the plan with the local authority. Where the local authority is preparing the plan on behalf of the person, or delegating this to a third party to do so, the best interests of the person must be reflected throughout.
The local authority must take all reasonable steps to reach agreement with the person for whom the plan is being prepared.
Wherever possible, local authority sign off should occur when the person, any third party involved in the preparation of the plan and the local authority have agreed on the factors within the plan, including the final personal budget amount (which may have been subject to change during the planning process), and how the needs in question will be met.
This is a key part of the planning process, agreement should be recorded and a copy placed within the plan.
Where an independent advocate has been involved, they should not be asked to sign off the plan – this is the responsibility of the local authority.
There is no defined timescale for the completion of the care and support planning process, but the plan should be completed in a timely fashion, proportionate to the needs to be met. Local authorities must ensure that sufficient time is taken to ensure the plan is appropriate to meet the needs in question, and is agreed by the person the plan is intended for. The planning process should not unduly delay needs being met.
Due regard should be taken to the use of the validation board. In some cases, the board may be an appropriate governance mechanism to sign off personal budget allocations and / or plans. The validation board should be appropriately skilled and trained, and should refrain from seeking to amend planning decisions, micro-manage the planning process or are in place purely for financial reasons.
The local authority should consider how to delegate responsibility to their staff to ensure sign off takes place at the most appropriate level.
In cases or circumstances where the validation process is used, and where an expert assessor has been involved in the care and support journey, the same person or their line manager should be part of the validation process to ensure decisions take into account complex or specialist issues.
In the event that the plan cannot be agreed with the person, or any other person involved, the local authority should state the reasons for this and the steps which must be taken to ensure that the plan is signed off.
This may require going back to earlier elements of the planning process. People must not be left without support while a dispute is resolved.
If a dispute still remains, and the local authority feels that it has taken all reasonable steps to address the situation, it should direct the person to the local complaints procedure.
However, by conducting person centred planning and ensuring genuine involvement throughout, this situation should be avoided.
Upon completion of the plan, the local authority must give a copy of the final plan which:
This should not restrict local authorities from making the draft plan available throughout the planning process; indeed in cases where a person is preparing the plan in conjunction with the local authority, the plan should be in their possession.
Consideration should also be given to sharing key points of the final plan with other professionals and supporters, with the person’s consent (for example, as part of the person’s health record), or sharing the plan in the best interests of a person who lacks capacity to decide on this matter.
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