Background to Carers Legislation

ELIGIBILITY CRITERIA FOR CARERS SERVICES

Introduction

This report outlines the legislative framework relating to Carers Assessment , provides extracts from good practice guidance for carrying out those assessments and defines outcomes with reference to the level of impact of the caring role on carers.

The report recommends that where at the discretion /judgement of the social worker the impact is assessed as critical or substantial carers should be eligible for services, and where the impact is moderate or low carers should be provided with information and signposted to alternative sources of support.

S.C.I.E.

The Social care institute for excellence ( ) has issued Practice guide 5 : Implementing the Carers ( Equal Opportunities ) Act 2004.

The practice guide states ;

“Services to Carers are discretionary . Although a carers assessment uses the same grading as the Department of Health’s fair access to care services (FACS) – i.e. ‘critical’ , ‘substantial’, ‘moderate ,’low’- to assess risk to sustainability of the caring role , there is no duty to provide services to carers.

However , ‘identification of a critical risk in a Carers Act assessment triggers a local authority obligation to make an appropriate response to address this risk “

This document is THE FINAL document , Team Managers, Merton Carers Partnership have been consulted and improvements have been inserted

This document has been agreed by CCMT on the 28th June 2006 to implement the Eligibility Criteria for Carers services with immediate effect.

If you have any questions ,queries please don’t hesitate to contact me.

Geoff Patmore 2 – 8 - 2006

INDEX

Page 1 INTRODUCTION

Page 2 BACKGROUND TO CARERS LEGISLATION

Page 3 & 4 GOOD PRACTICE GUIDANCE

Page 5-6-7 ELIGIBILITY CRITERIA FOR CARERS ASSESSMENT

Page 8-9 –10 ELIGIBILITY CRITERIA FOR CARERS SERVICES

Page 11 CARERS SERVICES

Page 12 – 13 – 14 EXPLANATORY CARERS ELIGIBILITY CHART

Page 15 GENERAL NOTES

Background to Carers Legislation

The Carers (Recognition and Services) Act 1995

The first piece of legislation for carers was the Carers (Recognition and Services) Act 1995 (“the 1995 Act”). It was seen as a major step forward for carers, giving them important new rights and a clear legal status. Under the Act, individuals who provide or intend to provide a substantial amount of care on a regular basis are entitled to request (at the time the person they care for is being assessed for community care services) an assessment of their ability to care and to continue caring. Local authorities are required to take into account the results of that assessment in making decisions about the type and level of community care services to be provided to the cared for person. The assessment under the 1995 Act is of the carer’s ability to provide care and of his or her ability to sustain the care that he or she has been providing. The 1995 Act applies to carers of all ages.

The Carers and Disabled Children Act 2000

The Carers and Disabled Children Act 2000 (“the 2000 Act”) made four principal changes to the law, with the objective of enabling local authorities to offer new support to carers to help them to maintain their own health and well being. The 2000 Act applies to carers aged 16 and over and people with parental responsibility for disabled children.

Under the 2000 Act local authorities have the power to supply certain services (those services which help the carer to care) direct to carers following assessment. It gives carers the right to an assessment independent of the community care assessment for the cared for person. This enables a local authority to carry out an assessment in circumstances where the cared for person has refused an assessment for, or the provision of, community care services.

The 2000 Act empowered local authorities to make direct payments to carers (including 16 and 17 year old carers) for the services that meet their own assessed needs. Since the Carers and Disabled Children Act 2000, the legislative framework relating to direct payments for carers has been updated through Section 57 of the Health and Social Care Act 2001.

In addition, the 2000 Act provides for local authority social services departments to run short term break voucher schemes. Voucher schemes are designed to offer flexibility in the timing of carers’ breaks and choice in the way services are delivered to cared for people while their usual carer is taking a break. And finally, the 2000 Act amends the Health and Social Services and Social Security Adjudications Act 1983 to give local authorities a power to charge carers for the services they receive.

The Carers (Equal Opportunities) Act 2004

The Carers (Equal Opportunities) Act 2004 (“the 2004 Act”) seeks, through;

Section 1, to give carers more choice and better opportunities to lead a more fulfilling life by ensuring that carers receive information about their rights to an assessment under the 2000 Act.

Section 2 ensures that those assessments now consider the carer’s wishes in relation to leisure, education, training and work activities.

Section 3 provides for co-operation between local authorities and other public authorities, including housing, education and health, in relation to the planning and provision of services that may help support the carer in their caring role.

These pieces of legislation should be seen as cumulative and all powers and duties in these currently apply to any one carer situation.

General good practice guidance

Under current eligibility criteria, the following definitions must be considered:

The right to a Carers Assessment is triggered once a carer has requested

that one take place. This should be carried out as soon as reasonably

practicable or immediately in an urgent case. 1 Of course the ability to

request an assessment depends upon knowing such a right exists.There

is accordingly a duty on social services to inform carers of their right

to make such a request.

Good practice standard for the London Borough of Merton is that assessors should offer a Carer’s Assessment to carers

All carers have certain basic rights: largely a right to have their views taken into account by a social services department when it is considering how best to make provision for a disabled person.

Carers that provide, or intend to provide a ‘substantial’ amount of care

on a regular basis have additional rights, in that they are entitled to have

a separate ‘carers assessment’.

In most cases, the role and views of a carer will be considered by the

Social services department when it is undertaking an assessment of the

disabled person.

If a carer chooses to be assessed as part of the client’s Community Care assessment then this is their right to do so and does not affect their eligibility for services

Supporting carers is a crosscutting issue and the key to excellence must therefore be effective partnership working between public authorities as well as with local voluntary and independent organisations. Not all the costs of offering wider, more flexible packages of support for carers fall within social services departments’ budgets. Other services, including education, housing, leisure facilities, libraries, and transport, can all provide a valuable contribution to the wider well-being of carers.

A carer centred approach to assessment

Front line staff should adopt a carer centred approach to assessment.

Guidance under both the 1995 and 2000 Acts have emphasised the importance of carers having the opportunity to have their assessments in private – ie away from the disabled person, if the carer so chooses.

The guidance states that ‘the assessment should listen to what [carers] are saying and offer an opportunity for privatediscussion in which carers can candidly express their views’.The 2000 Act guidance takes this right further by advising that in order that the carer have an opportunity to opt for a confidential meeting, the assessor is advised to make arrangements for the assessment ‘over the phone, and away from the home or while the cared for person is out’.

A carer centred approach may be achieved by listening to carers and looking to achieve outcomes which, while helping the carer to care, take account of the carer’s life beyond their caring. In looking at the carer’s willingness and ability to care, consideration should be given to the carer’s attitude and mental capabilities and not just their physical ability. Some people, for example, could provide care but may feel subject to a moral obligation to do so, or may feel defeated, trapped or depressed. The assessment of the person’s willingness and ability to care must also now take into consideration, for example, whether the carer works or wishes to work or undertake education, training or any leisure activity.

The assessment is not a test for the carer. It should not be prescriptive but recognise the carer’s knowledge and expertise. The assessment should listen to what they are saying and offer an opportunity for privatediscussion in which carers can candidly express their views.

It is not only the time spent each week caring that has an impact on carers. For some, such as those caring for adults with learning disabilities, the caring role can have the additional impact of being a life long commitment. For others, such as those caring for adults with severe mental health problems, caring can be a sporadic or cyclical responsibility. The carer may not be physically or practically caring at all at certain times, but still be anxious and stressed waiting for, or actively seeking to prevent, the next crisis. In addition, caring responsibilities may conflict with other family responsibilities, such as parenting or holding down a job. Any assessment of the carer's need for support has to look at the impact of the whole caring situation.

A local authority may contract with another body to carry out part of the assessment process on its behalf, for example interviewing the carer,researching possible assistance, preparing a report and even making a recommendation. However, as an assessment is a statutory function of the local authority it will have to make the final decision about whether or not to provide services itself. It is not enough for the local authority to simply check on a complete or partial basis the outcomes of another organisation’s assessments.

Not infrequently a disabled person will be refusing to accept services which would be of great benefit to the carer – for instance respite care (such as a sitting service or a short term placement in a care home – designed to give the carer a break). Frequently these can only be resolved by skilled and sustained social work. The courts have repeatedly held that social services departments cannot take a simple refusal (by a disabled person) of help at face value.They should continue to try and engage with the person.

Eligibility Criteria for Carers assessment

A ) Definition of carer

In community care usage this term excludes persons who are under a contract of employment to provide the care.

Such a definition includes non-resident carers (i.e. they may or may not live in the same house as the person they are caring for), and makes no stipulation as to the age of the carer or the quantity or quality of care provided, other than that the care provided is substantial and regular.

Carers are persons who look after a relative or friend who, because of disability, ill-health or the effects of age, needs help and support and who is eligible for Community Care services, regardless of whether they have elected to receive such services. Carers can therefore be partners, parents, elderly carers, young carers, family members, neighbours or someone identified by the person receiving Care. They are, as mentioned above, unpaid.

Once an informal carer gets paid, via Direct Payments, or any other method, for services which they provide to a user, they cease to have the right to an assessment under the Carers and Disabled Children Act 2000 (or under The Carers Recognition and Services Act 1995).

A ‘main’ or ‘primary’ carer is not necessarily the only substantial and regular carer. There can be more than one carer for the same person and they are all entitled to an assessment in their own right, if they so wish.

b).Definition of care

Care is defined in the widest sense and includes emotional and administrative support as well as doing physical and domestic tasks. Caring responsibilities may include regularly helping or supervising someone with their everyday activities such as shopping, cooking, washing or bathing and dressing as well as providing emotional support and advocacy.

c). Impact Test

It is the impact of the caring role on their lives, which will determine whether the carer is a substantial and regular carer and therefore eligible for services. The well-being of the carer must therefore be taken into consideration.

d).To be eligible for a carers’ assessment:

The Carer should be:-

• Over 16years (under 16 years the carer will be assessed under the Children Act 1989) and
• The cared for person must be over 18 years old and
• Merton Social Services must be satisfied that the cared for person is eligible for community care support within the agreed eligibility criteria and
• The carer should be providing both regular and substantial care.

e). Definition of Regular Care

Carer is in contact at regular intervals with the cared for person. There is a constant or defined pattern of care

Or

Carer provides short-term intensive care and support

And

If no contact is provided by the carer, the cared for person would be at risk.

f). Definition of substantial care

Care (physical, personal and emotional support) is provided or is anticipated to be provided over a long period

Or

The cared for person has a chronic illness.

g). Carer Well-being

Carer is at risk of harm/abuse from the person for whom they are caring

Or

It is becoming more difficult for the carer to continue to provide care.

The test that a practitioner should apply, when considering the term ‘ regular and substantial’, will relate to theimpactof the caring role on the individual carer.In particular, the practitioner needs to address the following questions:

• Is the caring role sustainable?
• How great is the risk of the caring role becoming unsustainable?

In determining what is ‘substantial’ the following four factors should be considered:

• Autonomy: i.e. the extent to which the carer has choice over the tasks which they perform in their caring role.
• Health and Safety: i.e. the risks to the carers own health if the caring role is to be maintained at its current level.
• Managing daily routines: i.e. the extent to which carers are able to look after their own domestic needs and other daily routines.
• Involvement: i.e. the extent to which carers have free time to maintain relationships, employment, interests and other commitments.

London Borough of Merton good practice standard is that ‘regular’ and ‘substantial’ are taken to mean that the carer believes caring has a considerable impact on their life.

It is important that assessors focuson ‘outcomes’, as criteria based solely upon ‘risk’ may result in their providing services regardless of whether those services are likely to make a real difference to the carer in their caring role.

As noted above, people who provide (or intend to provide) ‘a substantial amount of care on a regular basis’ are entitled to a carer’s assessment.

The law requires that assessments address two distinct questions.

• The sustainability of the caring relationship

The Assessment must assess the carer’s ‘ability to provide and to continue to provide care’ for the person s/he cares for.

• The work, education and leisure needs of the carer

The Assessment must specifically consider whether the carer

– works or wishes to work; and

– is undertaking, or wishes to undertake, education, training or any leisure activity.

The above paragraphs relating to the eligibility of a carer to an assessment are clearly understood by Merton practitioners. What is needed is a mechanism to trigger the Carers eligibility for services.

Eligibility criteria for Carers Services

The Practice Guidance to the 2000 Act (para 70) requires social services departments to grade the ‘extent of risk to the sustainability of the caring role’ into one of four categories – namely

‘critical, substantial ,moderate and low’.

The grading system is a formal determination of: the degree to which a carer’s ability to sustain that role is compromised or threatened either in the present or in the foreseeable future by the absence of appropriate support.

Although the grading system has strong similarities with the eligibility

criteria that regulate disabled people assessments the, consequences of a categorisation are different.

If a disabled person’s is assessed as having a ‘critical’ need, then this means that the local authority is under a duty to make services available to meet that need.

However a categorisation of critical in relation to the caring relationship

does not mean that the local authority is under a duty to make services

available to the carer – since there is no duty under the 2000 Act to provide services (merely a ‘power’).

As a matter of public law, the categorising of a risk to the sustainability of a caring role as ‘critical’ brings with it an obligation by the authority to take steps to ensure that support is made available to ensure that this state of affairs did not continue (or come to pass).

Although in such a situation the local authority is not obliged to provide the carer with services it is obliged to act. It has the choice therefore of providing the necessary support either to the carer by way of a service under the 2000 Act or by way of additional support to the disabled person by provision of a community care service.

The bottom line however, is that the identification of a critical risk in a Carers Act assessment triggers a local authority obligation to make an appropriate response to address this risk.

The practice guidance accompanying the 2000 Actstresses the