Tag Archives: Care Act 2014

Care Act Factsheet 13. Appeals Policy Proposals

“The Local Government Association argued that the failure to address issues relating to the ways in which people might seek redress ‘is an omission’. Similarly, Hull City Council noted that ‘there appears to be a lack of potential dispute resolution within the prescribed legislation’ and suggested that this can lead to ‘costly challenges’.”

“Law Commission consultation on Care and Support, March 2011


This factsheet describes how our appeals policy proposals set out the process of appealing certain decisions taken by local authorities in relation to an individual under Part 1 of the Care Act 2014.

Why have an appeals system?

The lack of a formalised appeal structure within care and support was highlighted in consultation responses as well as in debates when the Care Act 2014 progressed through Parliament.

The government acted and amended the Care Act to include powers to introduce an appeals system under which decisions taken by a local authority under Part 1 of the Care Act 2014 might be challenged.

Care and Support decisions have a large impact on people’s quality of life. It is therefore important that where people feel an incorrect decision may have been made in relation to their care and support they have an effective means to have the decision reviewed.

What is the aim?

Good communication can help prevent misunderstandings on both sides. By talking through the issues, the local authority can understand if they’ve missed anything and the person can also understand why a decision was reached rather than just simply what the outcome decision is.

The proposals aim to promote good communication between people seeking to make an appeal and the local authority to resolve any disputes that emerge as efficiently as possible. They promote the principles of early resolution, good communication, fairness, equality, independence, accessibility and proportionality.

The appeals process has been designed with the aim of resolving disputes in a less costly and time consuming manner compared with legal routes of challenging decisions.

What is the process?

The proposals put forward a 3 stage process, with the emphasis on early resolution wherever possible. First, there’s the early resolution stage, where the local authority facilitates open and constructive dialogue with the person making the appeal, with the aim of achieving a prompt resolution.

If early resolution is not reached, the appeal progresses to the second stage. This is the independent review stage; where the local authority appoints an independent reviewer. The reviewer will review the local authority’s original decision and make a recommendation as to whether they consider that decision was correct.

The third and final stage of the process is the authority decision. This is where the local authority makes a decision considering the Independent Reviewer’s recommendation.

What are the timescales?

The broad framework sets out that the early resolution and the independent review stage should take approximately up to 30 working days each to complete. However, this time period can be extended where the person’s involvement is delayed for ill health or the appeal is complex.

The process intends that people can lodge an appeal up to 12 months from the local authority’s original decision. However, local authorities have the discretion, if they wish to do so, to consider an appeal beyond the 12 month time limit.

Who can lodge an appeal?

An appeal may be made by the person with or without support; or the appeal may be made on an individual’s behalf by someone else: a family member, a friend, or anyone who has the consent of the person (if they have capacity to consent), or who are doing so in their interest (if they lack capacity).

An appeal may also be made by an independent advocate appointed under section 67 of the Care Act 2014 for people who have substantial difficulty in being involved with assessments, care planning or care reviews; it may be an independent advocate appointed under the Mental Capacity Act, or any other independent advocate.

Implementation of appeals policy

The government plans to implement the appeals policy from April 2020. During the interim period, we will develop the policy to respond to the key issues identified during the consultation held in 2015. This will also allow local authorities sufficient time to prepare for implementation and appoint the independent reviewers.”

Care Act Factsheet 12. Prisoners and people in resident in approved premises


“The difficulties that older prisoners face in the physical environment have been exacerbated by social care that is described variously as variable, sparse and non-existent; there has been a deplorable absence of basic personal social care, for example for prisoners with serious mobility problems, and no one seems sure who has been responsible for its provision.”

“House of Commons Justice Committee, Fifth Report of Session 2013/14, Older Prisoners


This factsheet describes how the Act sets out local authorities’ responsibilities for arranging and funding services to meet the care and support needs of adults who are detained in prison or who are resident in approved premises.

Context

A number of the people who are in prison or living in approved premises on licence will have a need for care and support.

Social care services are important for people in the criminal justice system who have care and support needs. It supports their rehabilitation and may positively impact on the likelihood of reoffending and the person’s ability to rebuild their lives on release.

Why have we changed the law?

Before the Care Act came into law, it was not clear about whether or which local authorities were responsible for providing care and support for prisoners and people living in approved premises. This meant that very few prisoners with care and support needs were having these needs properly assessed or met in an effective way.

For prisoners who have care and support needs before they enter prison, services can sometimes stop once they enter prison. Other prisoners may not have had their needs identified before entering prison or may develop care and support needs during their sentence. Not receiving care and support may impair their ability to take part in meaningful activities, impact negatively on rehabilitation and increase the risk of their reoffending on release.

Reports by Her Majesty’s Chief Inspector of Prisons, the Prison and Probation Ombudsman and the Prison Reform Trust have all criticised the quality of social care provision in prisons.

What does the Care Act do?

The Act makes clear where the responsibility lies for assessing the care and support needs of prisoners and people in approved premises, and providing care and support where those needs meet eligibility criteria.

The Act states that it will be the local authority where the prison or approved premises is located which is responsible. This means assessing whether someone has care and support needs and what those needs may be. After the assessment, the local authority must then determine whether the person is eligible for care and support using the same eligibility framework used for people living in the community. If they are assessed as having needs that meet the eligibility criteria, the local authority will meet those needs.

Just like people living in the community, prisoners and people in approved premises will have to pay part or the full cost of their care, if they can afford to do so.

Prisoners frequently transfer between prisons due to the progression of their sentence, changes in security category, or in preparation for release. If a prisoner is receiving care and support, the Act will ensure that there will be continuity of care in the next prison.

People leaving prison often experience difficulties in preparing for release. The local authority where the prisoner is located may carry out an assessment of the care and support they will need to support their release into the community. The Act will ensure that there will be continuity of care on release.

Whilst the Act will ensure that prisoners and people in approved premises will be entitled to care and support largely in the same way as people in the community, there will be instances where the care and support legislation will not apply to them.

Prisoners will not have the same choice in arranging their care as people not in prison and will not be entitled to direct payments for their care and support. However, this exclusion does not apply to those who have not been convicted of an offence, for example some people in bail accommodation.

Prisoners will not be able to express a preference for particular accommodation except when this is being arranged for after their release from prison or approved premises.

Some prisoners provide care for other prisoners, helping them in their day-to-day life. The Act gives local authorities a responsibility to assess a carer’s own needs for support. However, the Care Act clarifies that people will not be regarded as carers if they provide care as part of voluntary or paid work – almost all care provided by prisoners is expected to fall within these exclusions.

Local authorities will not have to protect the property of adults in prison or approved premises with care and support needs.

Prisons and approved premises will still be responsible for the safety of their detainees. This means that Safeguarding Adults Boards do not have a duty to carry out enquiries or reviews where a prisoner with care and support needs may be, or have been, at risk of abuse and neglect. Safeguarding Adults Boards can provide advice and assistance on safeguarding to prison governors and other officials and can invite prison staff to be members.

For further information, see also:

Care Act Factsheet 11. Transition for children to adult care and support


“Services at transition should be aimed at moving a person into work/adult life in such a way as to promote their independence and so reduce their long term needs for care and support.”

“Care and Support Alliance


This factsheet describes how the Care Act supports people moving from children’s to adult care and support services.

We know that the transition to adulthood is a time when young people and their families are thinking about their aspirations for the future. If people are likely to have care and support needs when they are 18, they need information and advice so that they can make the necessary plans.

Planning for transition

The Act says that if a child, young carer or an adult caring for a child (a ‘child’s carer’) is likely to have needs when they, or the child they care for, turns 18, the local authority must assess them if it considers there is ‘significant benefit’ to the individual in doing so. This is regardless of whether the child or individual currently receives any services.

When either a child or a young carer approaches their 18th birthday, they may ask for an assessment. A parent or carer may also ask for an assessment as the child they are caring for approaches 18.

As in all assessments, local authorities will need to consider the needs of the person, what needs they are likely to have when they (or the child they care for) turn 18, and the outcomes they want to achieve in life. They should consider what types of adult care and support might be of benefit at that point, and also consider whether other options beyond formal services might help the individual achieve their desired outcomes.

What information will someone receive?

The Act says that when an assessment is carried out, information should be given about whether the young person, child’s carer or young carer is likely to have eligible needs for care and support when they turn 18 (see factsheet 3). The person should receive advice and information about what can be done to meet or reduce the needs they are likely to have, as well as what they can do to stay well, and prevent or delay the development of future needs.

This information will give young people, child’s carers and young carers an indication of the sort of support they can expect. This will remove some of the uncertainty caused by having to wait and see what will happen when they turn 18.

If a person asks for an assessment but the local authority decides not to carry out an assessment, it must explain in writing why it has reached that decision. In any event, it must also provide information and advice about what the person can do to prevent or delay the development of care and support needs.

When does planning start?

The Act does not say that the child or young person has to be a certain age to be able to ask for an assessment. It says that local authorities must consider, in all cases, whether there would be a ‘significant benefit’ to the individual in doing an assessment.

This means the local authority is able to take each individual’s circumstances into account when deciding whether to assess them. This is instead of having a blanket rule that means everyone has to be assessed at the same age. This flexibility recognises that the best time to plan the move to adult services will be different for each person.

Ensuring there is no gap in services

When a local authority assesses a child (including a young carer) who is receiving support under legislation relating to children’s services, the Act requires them to continue providing him or her with that support through the assessment process.

This will continue until adult care and support is in place to take over – or until it is clear after the assessment that adult care and support does not need to be provided. These changes will mean there is no ‘cliff-edge’ where someone reaching the age of 18 who is already receiving support will suddenly find themselves without the care and support they need at the point of becoming an adult.

Working with other organisations

A successful transition to adult care and support needs the young person, their families and professionals to work together. This is crucial. The Act gives local authorities a legal responsibility to cooperate, and to ensure that all the correct people work together to get the transition right.

The Act makes clear that the local authority can combine any of these ‘transition’ assessments with any other assessment being carried out for some other person (provided all parties agree). If an external organisation (such as a hospital) is carrying out an assessment of the individual or a relevant person, for example, the individual’s carer or someone the individual cares for, around the same time as the local authority’s assessment, the local authority can carry out that assessment jointly with the other organisation or on behalf of the other organisation. This allows for sensible and flexible combinations of assessments, which is in everyone’s interest. Transition assessments could also potentially become part of a child or young person’s Education, Health and Care plan (see below).

The Care Act (and the special educational needs provisions in the Children and Families Act) requires that there is cooperation within and between local authorities to ensure that the necessary people cooperate, that the right information and advice are available and that assessments can be carried out jointly.

The Children and Families Act

The Children and Families Act creates a new ‘birth-to-25 years’ Education, Health and Care Plan (EHC) for children and young people with special educational needs , and offers families personal budgets so that they have more control over the type of support they get. In some cases, where a person is over 18, the ‘Care’ part of the EHC plan will be provided for by adult care and support, under the Care Act.

The Children and Families Act also improves cooperation between all the services that support children with special educational needs and their families. This requires local authorities to involve children, young people and parents in reviewing and developing care for those with special educational needs. Local authorities will also need to publish information about what relevant support can be offered locally.

Care Act Factsheet 10. Market Oversight and provider failure

“Ensuring continuity of care should care businesses fail and there be a risk of services stopping.”


This factsheet describes how the Act introduced a regime to oversee the financial stability of the most hard-to-replace care providers, and to ensure people’s care is not interrupted if any of these providers financially fail and services stop. It also describes the responsibilities of a local authority if a local care provider fails.

What happens when a care provider fails?

There is a diverse market for care services in England. Public, private and voluntary sector organisations can all provide these services.

As is the case in any market, providers may leave from time to time, sometimes because they have failed financially. Their care services may well be sold to or taken over by another provider. This process is usually managed in an orderly way that does not cause disruption for the people receiving care. However, there can on occasion be disorderly failures, which happen quickly or with little warning and which can threaten the continuity of services for the people who need them and cause great anxiety.

What was the problem with the old system?

Prior to the Care Act, the laws dated from 1948, when care was provided and managed very differently. There are now many large care providers that serve much of England. A diverse number of public, private and voluntary sector organisations have grown to provide good quality care to the population.

When a large, national or specialist care provider fails, it may impact on numerous local authorities. This might create problems for people receiving care and support from that provider if the situation is not well-managed.

When a provider that provides care to many people fails, a local authority might find it difficult to make any necessary alternative care arrangements.

Previously, there was no formal system in place for checking how well a care provider was managing its own finances. This meant there was no ‘early warning’ that this could become an issue, nor anything in place to help resolve the problems it might cause.

The failure in 2011 of Southern Cross, a major care provider, highlighted these issues. It is unacceptable for people to be left without the care services they need. The interruption of care services, or the worry that this might happen, can affect people’s wellbeing and cause stress to them, their families, friends and carers.

What does the Act do?

a) Managing provider failure locally

The Act gives local authorities clear legal responsibilities where a care provider fails. It makes it clear that local authorities have a temporary duty to ensure that the needs of people continue to be met should their care provider become unable to continue to provide care because of business failure, no matter what type of care they are receiving. Local authorities have responsibilities to all people receiving care, regardless of whether they or the local authority pay for that care, or whether it is funded in any other way.

Should a care provider fail financially and services cease, the local authority must take steps to ensure that all people receiving care do not experience a gap in the services they need. For some people, that may only require the provision of information and advice on alternative services available locally, to help them choose a new provider.

For others, it may require active arrangement of care with a different provider for a period of time, to ensure continuity. The steps will depend on the circumstances of the provider failure and the nature of support the person wants from the authority.

This duty applies temporarily, until the local authority is satisfied that the each person’s needs will be met by a new provider or in a different way. The local authority may make a charge for arranging care and support in these situations.

b) Market oversight

The Act established a new role for the Care Quality Commission (CQC) ,the independent regulator for health and care services in England. The CQC now has a responsibility for assessing the financial sustainability of certain ‘hard-to-replace’ care providers.

These are care providers which, because of their size, concentration or specialism, would be difficult to replace were they to fail and so where the risks posed by failure would be highest for individual local authorities.

To decide which providers CQC should oversee, regulations include criteria which set out which providers should be included in the regime. These criteria determine whether a provider would be ‘hard to replace’; they do not reflect whether or not a provider is likely to fail.

There are different criteria for care home operators and for other providers of care and support. Should it be needed, regulations can also specify particular providers to be included in the regime, irrespective of whether they would meet the entry criteria.

To assess financial sustainability, the Act gives the CQC the power to request information from any provider in the regime. Regulations also allow CQC to request information from other companies in the same group, where this is relevant to assessing the finances of the provider itself.

The Act allows CQC to request that a provider which it judges to be in financial difficulty should develop a sustainability plan and, where needed, arrange an independent business review.

This is intended to help the care provider to remain financially sustainable, so that the care it provides to people is not disrupted.

CQC’s role is to oversee the provider’s plans to remedy the situation and, if failure is judged to be likely, to inform the local authorities affected, to help them to deliver their duties to ensure continuing care to individuals.

The CQC’s aim is not to stop providers failing at all costs or to bail out providers in difficulty or interfere with any commercial discussions surrounding the likely failure.

Further details about how market oversight operates can be found on the Care Quality Commission’s website.”

Care Act Factsheet 9. Continuity of care when movng between areas

“Many disabled and older people can’t consider moving to another area because they can’t be sure that they will get equivalent levels of care and support in the new area.”

“Disability Rights UK


This factsheet describes how the Act supports people to move between local authority areas in England, without suffering a gap in the care they need when they arrive in the new area.

What is ‘continuity of care’?

‘Continuity’ means making sure that, when an adult who is receiving care and support in one area of England moves home, they will continue to receive care on the day of their arrival in the new area. This means that there should be no gap in care and support when people choose to move.

Why do we need to change the law?

People with care and support needs will sometimes want to move to a new area, just like anyone else – for instance, to get a new job, or to be closer to family.

The law previously did not provide protection for people who want to move to a different area. People often say that this made them less likely to move, because they were worried that they might lose their care and support in the new area.

What does the Act do?

The Act describes a process to be followed so that local authorities know when someone wants to move areas, and what must happen to make sure that their needs are met when they arrive in the new area. This applies in a number of circumstances:

  • an adult is receiving care and support from one local authority, and wants to move to a new area
  • an adult is receiving care in a type of accommodation (e.g. a care home), which is organised by a different local authority
  • to the one where the accommodation is located. The person wants to leave the care home but stay in the local area; and
  • from financial year 2020 to 2021, an adult is arranging their own care and support, but has a ‘care account’ because the costs of meeting their eligible needs count towards the cap on care costs (see factsheet 6)

Notifying before moving

In any of these circumstances, the adult (or someone on their behalf) must tell the local authority where they plan to move (the ‘second authority’) of their intentions.

After the second local authority has been informed, and it is satisfied that the intention to move is genuine, it must then inform the ‘first authority’. The ‘first authority’ is the local authority where the adult is currently living, or which is responsible for their care and support at that time.

The second authority may take steps to make sure that the person wants to move to their area, for instance, by speaking to them about their intentions.

Sharing information

When the first authority is informed that the adult is moving, it must do a number of things:

  • It must provide a copy of the adult’s care and support plan, so that the second local authority knows what the adult’s needs are

In the future:

  • it must provide a copy of the ‘care account’, if there is one
  • If the adult has been arranging their own care and support, it must provide a copy of the ‘independent personal budget’, as well as the most recent assessment
  • It must also provide any other information that the second authority requests, such as their financial assessment

If the adult has a carer who will continue to care for the adult after the move, the first authority must also provide a copy of the carer’s support plan.

When it receives this information, the second authority must carry out its own assessment of the adult’s needs. If a carer is moving with the adult, then the second authority must also assess the needs of the carer.

Both assessments can take place before the adult moves to the new area, to help ensure that the right care and support is in place when they arrive.

Adults’ needs may change when they move home. For instance, if they are nearer to family, they may have more sources of support. Alternatively, being in a new place may mean that they have new needs. It is important that the new local authority assesses them, so that the person receives the right care and support for their needs.

If the second authority finds any needs which are different to those identified by the first authority (and in the care and support plan or most recent assessment provided), it must explain in writing why that is the case.

The first authority must keep in contact with the second authority to keep track of progress on putting services in place, and it must keep the person informed about the contact and involve them in this part of the process.

The day of arrival

The above assessments should mean that the second authority will know about the adult’s needs before they arrive and will have services in place for the day of the move.

If on the day of the move the local authority has not carried out the assessments, for example because it wants to assess the person in their new home, or if they have not yet put in place care and support, then the ‘continuity duty’ is triggered.

This requires the second authority to meet any of the needs that were being met by the previous (first) authority, from the day that the person arrives in the new area. (This also applies to the needs of any carer who will continue to care for the adult after the move). The second authority will use the information shared in the care and support plan or recent assessment to decide what services to put in place to meet those needs.

The continuity duty continues until the second authority has carried out its own assessment and put in place all necessary care and support on the basis of that assessment. This should ensure that that people won’t experience any gap in their care.”