Community Care UPDATE

Two changes in legislation have had effect on families involved in Community Care with effect from April 1st.

Pensions Act 1995

The first impact is that of the Pensions Act which means that from April 8th 1996 husbands and wives of people in long term care are now able to keep half their spouse's occupational pension. Practitioners should be aware that this only applies to occupational pensions and will not apply to unmarried couples or divorcees or to spouses who are also in residential or nursing care.

The Budget

The changes in the capital allowances, i.e. the savings which can be held before care benefit is affected came into place on April 8th. The lower limit increased to £10,000 and the upper limit to £16,000. This applies only to elderly people who are in residential or nursing care.

The concept of notional income remains the same, i.e. £1 for every £250 or part of £250 over and above the £10,000 limit. Coincidentally, the personal expenses allowance for all residents of nursing or residential care homes who are supported either through Income Support or Local Authority, have now increased from £13.35 to £13.75.

The Carers (Recognition and Services) Act 1995

The most significant piece of legislation is the Carers (Recognition and Services) Act 1995 ("The Carers Act"). The effect of the Act is that it brings into consideration the family and friends who provide a substantial amount of care and support for those both in the community and in residential or nursing care. It extends the Local Authority assessment procedure to enable such people to be considered when the care/needs assessment is made.

The National Health Service and Community Care Act 1990 ("The NHS & CC Act") in fact had done little to clarify the position of carers in the provision of Community Care. The NHS & CC Act is an enabling Act which is dependent on complex legislation, statutory instruments and guidance. There is no clear cut national standard as to how the Community Care legislation is to be applied and hence the Carers Act is welcomed as giving some clarification on the question of how much assistance should be provided by the Local Authorities.

The duties which have been created over the years and which are Community Care based are those created by Section 21 of the National Assistance Act 1948 which is the duty to accommodate ill, elderly people and disabled people; the duty created under the Chronically Sick and Disabled Persons Act 1970 Section 2 where there is a duty to provide community based services for disabled people; the duty created under the Health Services and Public Health Act 1968 Section 45 which gives power to the Authorities to provide community based services for the elderly people and the duties under the National Health Services Act 1977 Schedule 8 which gives rise to a duty to provide community based services for ill people.

The fundamental problem with all these provisions is that there is a duty to provide the services after Social Services have decided that someone is in need of such services, but no duty was placed on Social Services Departments actually to make the assessment. This led to a number of services not being provided. To resolve this problem the Disabled Persons (Services, Consultation and Representation) Act 1986 Section 4 actually gave the disabled the right to require Social Services Departments to assess them. The NHS & CC Act takes this further and actually places a mandatory duty upon Social Services Departments. However, the needs of carers were disregarded and although the Disabled Persons (Services, Consultation and Representation) Act 1986 tried to do so, unfortunately Section 8 which is the significant section of the Act had a number of shortcomings, namely that there was no duty for the carer to be assessed, only a requirement that their ability to care should be considered and, furthermore, the duty on Social Services Departments would arise only where a carer was providing substantial care on a regular basis. The effect of the new legislation is to attempt to deal with these shortcomings.

The Act aims to ensure that proper recognition is given to carers. The NHS & CC Act was geared to assessing need and to providing services for those recognised as disabled, whether under the Disabled Persons Act or under the Community Care Act. Although the ethic was that the carer should be considered, there was no formal legislation directed towards the carers until the Act came into play. For the first time carers are recognised as needing support and that when service provision is decided some consideration should be given to making sure that carers have a say in the level of care and support which they wish to receive. Importantly this should be no more or less than they wish to receive, but the request has to be reasonable in the circumstances of the case. Under the Act, Section 1 places new duties on Local Authorities, namely that a carer on request is entitled to an assessment when the Section 47 (1) (a) assessment of an elderly person is carried out, i.e. when a need for community services is determined.

To qualify for this consideration the carer must be a private carer who is providing regular and substantial care. This by virtue of its definition excludes voluntary organisations and their employees who provide care.

The Section also provides for people who are intending to provide care for their elderly relative.

Once the request has been made the Social Services Department then have to take the carers assessment of need into account in determining what services should be provided for the user of those services.

The Act does define what is meant by a carer and Sections 1 (1)(b) and 1 (2)(b) give the definition of a carer as 'someone who provides or intends to provide a substantial amount of care on a regular basis for a disabled, ill or elderly person'. Section 1 (3) provides for the exclusion of people who either provide or will provide the care because they are under contract to do so, or because they are volunteers working for a voluntary organisation.

A major difficulty is determining what amounts to a substantial amount of care on a regular basis. There has been no clear cut policy guidance to accompany the legislation to determine how these terms are to be interpreted.

"Substantial" should be given a wide interpretation which takes into account the individual circumstances of the carer. It is possible that they may take into account the Income Support definitions under the Carers Allowance Regulations. The danger is that this is a subjective question. Like many issues in Community Care the lack of a clear national definition or directive means that the Act will be open to variations in its interpretation by the different Authorities. For example, does regular mean that care occurs on a recurrent basis, which may be infrequent or is it frequent daily care. In the current financial stringency it is likely that the Local Authorities are going to interpret that provision very carefully indeed. Where the carer is not providing this level of service, then there is no duty to consider their needs under the Carers Acts. There may, however, be policy guidance available to the Local Authority in 'Community Care in the Next Decade and Beyond' (HMSO 1990).

All carers are able to request assessment under the Carers Act whether they are children, parents or other relatives.

The assessment of the carers must take into account the principles which have already been set out by the Department

of Health in their Care, Management and Assessment Summary of Practice Guidance. Social Services Departments may also wish to establish their own criteria. Clearly each Local Authority will need new procedures on which to base their assessment and the subsequent implementation of any relevant decisions. This may well involve independent providers and may also involve the Health Authority.

Like Section 47 Assessments it is significant that such carers assessments are reviewable on a regular basis and a change in provision and pattern can be requested at any time.

The Act therefore requires Social Services Departments to take into account the carers assessment when making decisions about the level of services to be provided for the user. Guidance suggests that the decision should be based on both assessments, the aim being to bring them together and to provide a uniform and seamless package.

However, as new eligibility criteria are being issued by Local Authorities, upon which they will base the help which they give in the community, whether by way of residential, nursing or domiciliary care, it will be interesting to project just how much recognition will be taken of this Act. Current financial stringencies may well be increased as the pressure on public funds rises.

In summary, therefore, the Carers Act (Section 1) provides a duty of the assessor to consider the ability of the carer. This arises only when a request has been made by the carer. The Social Services Department are required to carry out actual assessments of the ability of the carer to provide the level of care required. The Act covers a wide range of carers, namely those who will provide care services under the Mental Health Act 1983, under the Health Services and Public Health Act 1968, under the Children Act 1989 and will be extended to Scotland and Northern Ireland in due course.

Anne Edis, Associate Solicitor,Palmer Wheeldon