Cornwall parents’ seminar - PowerPoint Presentation

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Cornwall parents’ seminar Disabled children, young people and families – the law in a day 20 May 2016

Steve Broach BarristerMonckton Chambers

www.monckton.com

+44 (0)20 7405 7211Slide2

9.30-9.45 – Welcome and introductions9.45-11.00 – Session 111.00-11.15 – Break11.15-12.30 – Session 212.30-1.15 – Lunch1.15-2.30 – Session 32.30 – CloseThis presentation is intended for general information and should not be relied upon in relation to any individual case. Agenda for Daywww.monckton.com+44 (0)20 7405 7211Slide3

DON’T PANIC...Evolution not revolutionOpportunity to clarify and cement dutiesWe are all in the same boat...Core Messagewww.monckton.com+44 (0)20 7405 7211Slide4

Domestic lawActs of Parliament – eg Children Act 1989Difference between powers and dutiesRegulations – eg SEN and Disability RegulationsRules, Directions, Orders etcCase Law – what does ‘precedent’ mean?GuidanceStatutory Non-statutory

Some basicswww.monckton.com+44 (0)20 7405 7211Slide5

Process by which the High Court reviews the lawfulness of decisions by public bodies, or their policiesGenerally focus on processDecisions or policies can be unlawful in substance if they are unreasonable or disproportionateUsual remedy – quashing orderLegal aid may be available in child’s nameJudicial Reviewwww.monckton.com+44 (0)20 7405 7211Slide6

Equality Act 2010Direct discriminationIndirect discriminationDiscrimination arising from disabilityFailure to make reasonable adjustmentsHuman rightsArticle 14 ECHRRequires another ECHR right – eg Article 8Brings in other international law principles, eg children’s best interests

Duties not to discriminatewww.monckton.com+44 (0)20 7405 7211Slide7

Section 149 of the Equality Act 2010Requires public bodies to have ‘due regard’ to a series of specified needs when carrying out their functions.Includes needs to eliminate discrimination and advance equality of opportunityBracking – two key issues:Proper understanding of impact of the decision on disabled children and familiesSpecific regard to the needs specified in section 149

Challenging Cuts – PSEDwww.monckton.com+44 (0)20 7405 7211Slide8

Moseley v LB Haringey – Supreme CourtContext – consultation on local Council Tax reduction schemeApproved principles from Coughlan – consultation must:Take place at formative stageAllow adequate time for responsesProvide sufficient information to consulteesInvolve proper consideration of responses prior to decision

Challenging Cuts – Consultationwww.monckton.com+44 (0)20 7405 7211Slide9

Section 19 CFA provides that: In exercising a function under this Part in the case of a child or young person, a local authority… must have regard to… the need to support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes.Applies to everything done under CFACFA - Importance of s 19 principleswww.monckton.com+44 (0)20 7405 7211Slide10

SEN - a learning difficulty or disability which calls for special educational provision (SEP)SEP - educational or training provision that is additional to, or different from, that made generally for others of the same age in mainstream schools in EnglandHealth care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision)Definitionswww.monckton.com+44 (0)20 7405 7211Slide11

R (T, D and B) v Haringey LBC [2005] EWHC 2235 (Admin)3 year old child with tracheostomy – required significant levels of nursing careCourt held this went beyond the scope of the local authority’s dutiesLocal authorities are not allowed to act as a ‘substitute NHS for children’See the National Framework for Children and Young People’s Continuing CareHealth / Social Care dividewww.monckton.com+44 (0)20 7405 7211Slide12

Presumption in favour of maintained nursery school, mainstream school or mainstream post-16 – section 34SEN support – four part cycle AssessPlanDo Review – all funded via notional SEN budget + top upGovernors’ best endeavours duty – section 66Duties to meet medical needsSupport from schoolwww.monckton.com+44 (0)20 7405 7211Slide13

Duty to make RA applies toPolicies (provisions, criteria or practices)Auxiliary aids and servicesCovers admissions, exclusions and the provision of education in the schoolNo fixed definition – must make any adjustments it would be ‘reasonable’ to makeDuty is ‘anticipatory’Applies in relation to disabled children generally, not just those already in the schoolSchools – Reasonable Adjustmentswww.monckton.com+44 (0)20 7405 7211Slide14

No charge can be made for RACost relevant to whether the adjustment requested is ‘reasonable’Schools must also prepare ‘accessibility plans’, including in relation to physical featuresRemedy – appeal to First-tier TribunalAlso considerDiscrimination arising from disabilityIndirect discriminationSchools – Reasonable Adjustments (2)www.monckton.com+44 (0)20 7405 7211Slide15

Section 25 – LAs must carry out functions with view to integrating education, health and social care provisionSection 26 – duty to have joint commissioning arrangements (Code Ch 3)Section 27 – duty to keep education and care provision under review and consider sufficiencySections 28, 29, 31 – co-ooperation dutiesStrategic dutieswww.monckton.com+44 (0)20 7405 7211Slide16

Much of detail about transition to new system left to Local AuthoritiesGuidance - ‘Transition to the new 0 to 25 special educational needs and disability system‘ – reissued for 1 September 2015Each LA must have local transition planPara 5.5-5.8 for requirements of the plan – order of transfer of statements, details of transfer review process (EHC assessment), arrangements for LDAs etcMust be consultation with parents and CYP (as a result of section 19) in preparing the plan.Local Transition Planswww.monckton.com+44 (0)20 7405 7211Slide17

Key existing law re social care / healthChildren Act 1989 section 17 / Working Together to Safeguard Children (2015)Support for children ‘in need’Duty to carry out some form of assessment for all children in need (see handout re Warwickshire case)Timescale – maximum of 45 working daysImmediate response in urgent casesRequirement for child in need planLink to Chronically Sick & Disabled Persons Act 1970 s 2Health / Education / Social Care interfacewww.monckton.com+44 (0)20 7405 7211Slide18

Chronically Sick and Disabled Persons Act (CSDPA) 1970 s 2Duty to provide extensive list of services where necessary to meet needsLA can take account of resources when deciding whether ‘necessary’ (not just desirable) to provide serviceBUT once accepted to be necessary to provide service, must provide sufficient service to meet needHealth / Education / Social Care interfacewww.monckton.com+44 (0)20 7405 7211Slide19

The CSDPA service listPractical assistance in the homeRecreational facilities, or assistance in obtainingAssistance in taking advance of available educational facilitiesTransport to any social care servicesAdaptations to home or additional home facilitiesHolidaysMealsTelephone, inc special equipment to use oneHealth / Education / Social Care interfacewww.monckton.com+44 (0)20 7405 7211Slide20

CSDPA 1970 s 2(4): ‘(4) Where a local authority have functions under Part 3 of the Children Act 1989 in relation to a disabled child and the child is ordinarily resident in their area, they must, in exercise of those functions, make any arrangements within subsection (6) that they are satisfied it is necessary for them to make in order to meet the needs of the child.’Health / Education / Social Care interfacewww.monckton.com+44 (0)20 7405 7211Slide21

Relevant statutory dutiesCSDPA 1970 s 2 – home-based (s 2(1)(a)) and community-based (s 2(1)(c))CA 1989 s 17 and schedule 2, para 6(1)(c)Provide services ‘to assist individuals who provide care for such children to continue to do so, or to do so more effectively, by giving them breaks from caring’.Breaks for Carers of Disabled Children Regulations 2011CA 2004 s 11 – safeguarding and promotion of children’s welfare in carrying out functionsCFA 2014 s 19 – ‘best possible outcomes’Short Breakswww.monckton.com+44 (0)20 7405 7211Slide22

Breaks for Carers of Disabled Children RegsReg 3 – must have regard to needs of carers who would be able to provide care for their disabled child more effectively if breaks from caring were given to them to allow them to—undertake education, training or any regular leisure activity,meet the needs of other children in the family more effectively, orcarry out day to day tasks which they must perform in order to run their household. Short Breakswww.monckton.com+44 (0)20 7405 7211Slide23

Breaks for Carers of Disabled Children RegsReg 4 – a local authority must provide, so far as is reasonably practicable, a range of services which is sufficient to assist carers to continue to provide care or to do so more effectively Includes daytime and overnight care, leisure activites and weekend and holiday servicesReg 5 – ‘short breaks services statement’range of services, any eligibility criteria and ‘how the range of services is designed to meet the needs of carers in their area’. Short Breakswww.monckton.com+44 (0)20 7405 7211Slide24

Residential short breaksOnly important social care service incapable of being provided under CSDPA s 2. If family are in ‘actual crisis’ then may be a specific duty to provide breaks under Children Act 1989 s 20Otherwise ‘general duty’ under Children Act 1989 s 17 – governed by rationalityHealth / Education / Social Care interfacewww.monckton.com+44 (0)20 7405 7211Slide25

Section 97 – parent carers’ needs assessmentsIn force 1 April 2015Inserts new sections 17ZD-ZF into CA 1989Requires PCNA to be carried out either on request or where appearance of need (s 17ZD(3))Must have regard to well-being of parent carer and need to safeguard and promote welfare of disabled child (s 17ZD(10))May be combined with other assessments (s 17ZE(3))cf new ‘Young Carers Assessments’Duties to parent carerswww.monckton.com+44 (0)20 7405 7211Slide26

Is there a new duty to provide services to parent carers?Section 17ZF requires ‘consideration’ of PCNAIn particular:Does the parent carer have needs for support in relation to their caring role?Does the disabled child have needs for support?Could those needs be satisfied by services provided under section 17?Must then decide ‘whether or not to provide any such services in relation to the parent carer or the disabled child’Duties to parent carerswww.monckton.com+44 (0)20 7405 7211Slide27

Problems with PCNAsOverlap with existing carers’ assessment dutiesOverlap with duty to conduct ‘holistic’ assessment of disabled children under CA 1989 s 17Only general duty to provide services under section 17 – including to family members, s 17(3)No link to CSDPA 1970 s 2 – the specific duty to provide services to disabled children...Duties to parent carerswww.monckton.com+44 (0)20 7405 7211Slide28

Key existing law re social care / healthNational Framework for Children’s Continuing HealthcareApplies to ‘complex’ cases – inc behaviourNational Framework reissued Feb ‘16 accompanied byPre-assessment checklistDecision support toolGuide for young people and parents (2 sides!)Guidance on who is eligible – Decision Support ToolDecision on eligibility in 6-8 weeks, then package of care (led by CCG?)Health / Education / Social Care interfacewww.monckton.com+44 (0)20 7405 7211Slide29

EHC needs assessment – section 36Must carry out an assessment whereCYP has or may have SEN; ANDIt may be necessary for special educational provision to be made for the child or young person in accordance with an EHC PlanKey factors to consider – SEND Code at para 9.14Can be requested up to 25th birthdayHealth / Education / Social Care interfacewww.monckton.com+44 (0)20 7405 7211Slide30

When must an EHC Plan be issued?Section 37Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made in accordance with an EHC PlanSEND Code at para 9.56 Whether provision required could reasonably be provided from resources normally available to maintained schoolsHealth / Education / Social Care interfacewww.monckton.com+44 (0)20 7405 7211Slide31

EHC Plans – single document, but different duties to include provision and to provide itSection 37(2) - must include:Special educational provision‘health care provision reasonably required by the learning difficulties and disabilities which result in him or her having special educational needs’See further Code at Ch 9.62Health / Education / Social Care interfacewww.monckton.com+44 (0)20 7405 7211Slide32

Section 37(2) re social care – must include:For under 18s, any social care provision which must be made as a result of section 2 of the Chronically Sick and Disabled Persons Act (CSDPA)1970Any other social care provision reasonably required by the learning difficulties and disabilities which result in the child or young person having special educational needsHealth / Education / Social Care interfacewww.monckton.com+44 (0)20 7405 7211Slide33

Key sections of EHC PlansSections B-D – needsSection E – outcomesSection F – special educational provisionSection G – health care provisionSections H1 and H2 – social care provisionSection I – placementSection J – direct paymentHealth / Education / Social Care interfacewww.monckton.com+44 (0)20 7405 7211Slide34

Duty to provide – section 42:The local authority must secure the specified special educational provision for the child or young person.If the plan specifies health care provision, the responsible commissioning body must arrange the specified health care provision for the child or young person.No legal diff ‘secure’ and ‘arrange’ – same dutyHealth / Education / Social Care interfacewww.monckton.com+44 (0)20 7405 7211Slide35

Case studyAssessment concludes child with autism needs four hours per week personal care and six hours per week short breaksBoth of these are services which can be provided under CSDPATherefore must be specified in Plan and providedFor more detail search ‘JL v Islington’ on BAILLIHealth / Education / Social Care interfacewww.monckton.com+44 (0)20 7405 7211Slide36

PlacementsSection 39Local authority must name requested school or institution unlessUnsuitable for CYP; orIncompatible with provision of efficient education for others; orIncompatible with efficient use of resources.Includes independent schools on approved listHealth / Education / Social Care interfacewww.monckton.com+44 (0)20 7405 7211Slide37

Reviews and reassessmentsSection 44Requirement for annual reviews of EHC PlansFurther requirements in relation to transfers between phases of educationDuty to review is on local authorityReassessments must be carried out ifNo assessment in previous six months; andLocal authority considers it is necessary. Health / Education / Social Care interfacewww.monckton.com+44 (0)20 7405 7211Slide38

Attending reviews - Code at para 9.173‘As part of the review, the local authority and the school, further education college or section 41 approved institution attended by the child or young person must cooperate to ensure a review meeting takes place. This includes attending the review when requested to do so.’Health / Education / Social Care interfacewww.monckton.com+44 (0)20 7405 7211Slide39

Already available in health and social careC&F Act extends to educationTwo key issues whether a ‘direct payment’ will be available – section 49:Personal Budget information must be provided (although Regulations exempt services which cannot be disaggregated)Direct Payment may be availableHow much money will be offered…Personal Budgetswww.monckton.com+44 (0)20 7405 7211Slide40

Relevant regulations:Special Educational Needs (Personal Budgets) Regulations 2014 Community Care, Services for Carers and Children’s Services (Direct Payments) Regulations 2009 (replaced for adults by those made under the Care Act 2014)National Health Service (Direct Payments) Regulations 2013 National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) (Amendment) (No. 3) Regulations 2014Personal Budgetswww.monckton.com+44 (0)20 7405 7211Slide41

In essence…SEN – no DPs if to do so would cause adverse impact on other CYP with EHC Plans or making the DP would be an inefficient use of the LA resources – Reg 6 of the SEN PB Regs & CoP at 9.123Social care – direct payment must be made unless limited exceptions, primarily related to capacity of parent to manage money, applyHealth – power but currently no duty to make DP for any health service (inc to child’s representative)Personal Budgetswww.monckton.com+44 (0)20 7405 7211Slide42

Level of personal budget / direct payment must be set at the reasonable cost of securing the necessary servicesCoP at 9.102; ‘The final allocation of funding budget must be sufficient to secure the agreed provision…’CoP at 9.106; ‘Local authorities must consider each request for a personal budget on its own individual merits’.Resource Allocation Schemes can only give ‘indicative’ amountSee R (KM) v Cambridgeshire CC http://www.bailii.org/uk/cases/UKSC/2012/23.html Personal Budgetswww.monckton.com+44 (0)20 7405 7211Slide43

Case studyEHC Plan specifies three hours per week speech and language therapy as special educational provisionLA has block contract with charity provider therefore no duty to make direct paymentSame Plan specifies four hours per week of short break care (social care service)No objection re parental capacity to manage payments therefore DPs must be made. Personal Budgetswww.monckton.com+44 (0)20 7405 7211Slide44

C&F Act section 30Requirement to publish information about provision expected to be available within and outside LA’s areaMust consult and publish comments about local offer at least annually (ie first set of published comments now due)Regs 53-57 & Sch 2 SEN and Disability Regs 2014Who to consult and involveRequirements as to publication of commentsRequirements as to publication of Local Offer itselfLocal Offerwww.monckton.com+44 (0)20 7405 7211Slide45

Code of Practice at Chapter 4In setting out what they ‘expect to be available’, LAs should include provision which they believe will actually be available. Two key purposes: To provide clear, comprehensive & accessible information about the available provision and how to access it, and To make provision more responsive to local needs and aspirationsPara 4.19 – review requirement includes sufficiency of provisionHow to make it more than just a directory?Local Offerwww.monckton.com+44 (0)20 7405 7211Slide46

The Local OfferR (L and P) v Warwickshire CC [2015] EWHC 203 (Admin)Ground D – paras 74-80. Local Offer deficient in relation to 16 of the matters prescribed by Schedule 2 to the 2014 Regulations.Proposed Local Offer falls ‘a considerable distance short of the statutory requirements’CFA 2014 – Top Three Challenges (1a)www.monckton.com+44 (0)20 7405 7211Slide47

The Local OfferBasic requirement of all Local Offers is to provide the information required by schedule 2 to the RegulationsVital not to lose second purpose, see Code at para 4.2‘To make provision more responsive to local needs and aspirations’LAs should already be seeking comments in accordance with regulation 56 (and s 27)CFA 2014 – Top Three Challenges (1b)www.monckton.com+44 (0)20 7405 7211Slide48

Transition to EHC PlansEvery LA required to have its Local Transition Plan in placeSee ‘Statutory guidance - ‘Transition to the new 0 to 25 special educational needs and disability system‘Transfer review requires the local authority to carry out an EHC needs assessment in accordance with Regulation 6New advice required unless parents, professional and LA agree to use old adviceCFA 2014 – Top Three Challenges (2)www.monckton.com+44 (0)20 7405 7211Slide49

The Joined-Up ApproachHealthClear duty on CCGs to arrange provision if in planChallenge seems to be getting health to tableSocial careReal confusion as to what is required by the CSDPA 1970 (section H1)Different entitlement to direct paymentsAbsence of Tribunal appeal rightIncluding outcomes...(although note pilot re HSC)CFA 2014 – Top Three Challenges (3)www.monckton.com+44 (0)20 7405 7211Slide50

Governed by Education Act 1996‘Eligible’ children aged 5-15 – duty to provide free, suitable transport (s 508B)Children aged under 5 or 16-17 – power to provide suitable transport – can charge (s 508C)Over 18s – duty to provide suitable transport – free of charge (s 508F)Post-16 transport policy statement – s 509AA and ABSchool Transportwww.monckton.com+44 (0)20 7405 7211Slide51

Children with SEN as ‘eligible’ children:A child falls within this paragraph if–(a) he is of compulsory school age and is any of the following–a child with special educational needs, a disabled child, a child with mobility problems,(b) he is a registered pupil at a qualifying school which is within walking distance of his home,(c) no suitable arrangements have been made by the local authority for enabling him to become a registered pupil at a qualifying school nearer to his home, and (d)...he cannot reasonably be expected to walk to the school mentioned in paragraph (b).School Transport (2)www.monckton.com+44 (0)20 7405 7211Slide52

Children outside statutory walking distance:A child falls within this paragraph if–he is of compulsory school age and is a registered pupil at a qualifying school which is not within walking distance of his home,(b) no suitable arrangements have been made by the local authority for boarding accommodation for him at or near the school, and (c) no suitable arrangements have been made by the local authority for enabling him to become a registered pupil at a qualifying school nearer to his home. School Transport (3)www.monckton.com+44 (0)20 7405 7211Slide53

General rule – once YP turns 16 parents can no longer make decisions for themBUT – section 80 CFA and Part 6 of the RegulationsYP aged 16 and other with capacity can decide for themselvesParents or ‘representatives’ (eg Deputies) can make decisions for YP who lack capacity up to age 25 See Annex 1 of Code of Practice for (short) summaryOnly applies to decisions under CFATransition - Mental Capacitywww.monckton.com+44 (0)20 7405 7211Slide54

The principlesSection 1 MCAPresumption of capacity‘All practicable steps’ to help make decisionRight to make unwise decisionsAll acts and decisions for person who lacks capacity must be in their best interestsRequirement for ‘least restrictive’ optionTransition - Mental Capacity (2)www.monckton.com+44 (0)20 7405 7211Slide55

General approach to mental capacitySection 2 MCA:‘a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.’Section 3 MCA‘unable’ includes inability to understand or ‘use or weigh’ informationSection 4 MCADetail in relation to best interests decision makingTransition - Mental Capacity (3)www.monckton.com+44 (0)20 7405 7211Slide56

General approach to mental capacitySection 5 MCA‘general defence’ for those who (i) reasonably believe a person lacks capacity and (ii) reasonably believes the act is in that person’s best interestsComplex issues in relation to deprivation of libertyDeprivation of Liberty Safeguards – hospital / care home 18+, Court of Protection otherwiseMental Capacity (4)www.monckton.com+44 (0)20 7405 7211Slide57

Care Act 2014 in force from April 2015Abolishes most adult community care statutesCSDPA 1970 s 2 remains in force for children (up to 18)New scheme for adult careNew duties around transitionSuite of regulations, single guidance docCare Act - Introductionwww.monckton.com+44 (0)20 7405 7211Slide58

Claimed to be ‘most significant reform of care and support in more than 60 years’Described by one commentator as the merger of social work practice, values and ethics with statuteBUT in fact, fundamentals of previous system (assess, decide, provide) remain untouchedCare Act – Introduction (2)www.monckton.com+44 (0)20 7405 7211Slide59

Summary of major changesWell-being dutySingle national eligibility thresholdSafeguardingAdvocacyCarers right to servicesPortabilityApplication of HRA 1998 to non-state care providers – section 73Care Act – Introduction (3)www.monckton.com+44 (0)20 7405 7211Slide60

Section 1 – principled approach to adult social care – promotion of well-beingGeneral duty – to promote individual’s well being – starts with ‘personal dignity’Starting point is individual is best placed to judge own well-beingGuidance suggests comes close to incorporating Article 19 CRPDCare Act – Well-being dutywww.monckton.com+44 (0)20 7405 7211Slide61

Promoting diversity and quality in provision of services – section 5LAs must ‘promote the efficient and effective operation of a market in services for meeting care and support needs’Outcome – that people with care and support needs will haveA variety of providers to choose fromA variety of high quality services to choose fromSufficient information to make an informed decisionCare Act – Market shapingwww.monckton.com+44 (0)20 7405 7211Slide62

Sections 58-66 – transition to adult care and supportAssessments of children – ss58-59Assessments of children’s carers – ss60-61Power to provide services to carers – s62Assessments of young carers – ss63-64Continuity of services – s66Care Act – Transitionwww.monckton.com+44 (0)20 7405 7211Slide63

Assessments of children – ss58-59Requirement for ‘child’s needs assessment’Where LA satisfied child likely to have needs for care and support post 18 (no set age)Must assess when satisfied that it would be of significant benefit to the child to do so Consent condition (no consent required if abuse or neglect)Detailed requirements in section 59Care Act – Transition (2)www.monckton.com+44 (0)20 7405 7211Slide64

Assessments of child’s carers – ss60-61Requirement for ‘child’s carer’s assessment’Where LA satisfied carer of child likely to have needs for care and support post 18 (no set age)Must assess when satisfied that it would be of significant benefit to the carer to do so and if the carer consentsDetailed requirements in section 61Must consider whether carer willing and able to continue providing careCare Act – Transition (3)www.monckton.com+44 (0)20 7405 7211Slide65

Assessments of young carers – ss63-64Requirement for ‘young carer’s assessment’Where young carer likely to have needs for support after they turn 18Must assess when satisfied that it would be of significant benefit to the young carer to do so and if the young carer consents (unless risk of abuse or neglect)Detailed requirements in section 64Care Act – Transition (4)www.monckton.com+44 (0)20 7405 7211Slide66

Continuity of services – s66New section 17ZH inserted into Children Act 1989Must continue to provide services post-18 until Care Act assessment(s) completedNew section 17ZIMust continue to provide services where EHC Plan no longer maintained until Care Act assessment completedNew section 2A inserted into CSDPA 1970Same as section 17ZH above (services must continue)Care Act – Transition (5)www.monckton.com+44 (0)20 7405 7211Slide67

Sections 9-13 (section 9 – adults; section 10 – carers)Very low threshold for duty to assessAppearance of need for (care and) supportFocus on well-being and outcomesCarer’s assessment includes whether willing to provide care (section 10(5)(b))See further Assessment Regulations Care Act – Assessmentwww.monckton.com+44 (0)20 7405 7211Slide68

National eligibility threshold – section 13At present, adult eligibility criteria set locally – ‘critical’, ‘substantial’, ‘moderate’ or ‘low’Section 13 – requires national threshold to be determined in regulationsRegulations intended to set threshold at roughly ‘substantial’ level – so no more ‘critical only’Always open to LAs to provide more than minimum eligibility threshold Care Act - Eligibilitywww.monckton.com+44 (0)20 7405 7211Slide69

Eligibility regulations – disabled peopleNeeds arise from or related to physical or mental impairment or illnessAs a result adult unable to achieve two or more outcomesAs a consequence – significant impact on well-beingUnable – means in essence ‘finds difficult’...Significant – more than minor or trivial?Care Act – Eligibility (2)www.monckton.com+44 (0)20 7405 7211Slide70

Eligibility regulations – carersNeeds arise as a consequence of providing necessary care (see guidance)Effect of carers needs is:Deterioration in carer’s physical or mental health (actual or risk); orUnable to achieve one or more specified outcomesConsequence – significant impact on carer’s well-beingCare Act – Eligibility (3)www.monckton.com+44 (0)20 7405 7211Slide71

Section 8 – ways in which needs can be metSection 18 – duty to meet needs (adult)Section 20 – duty to meet needs (carers)Section 24 – next steps duties:prepare a care and support plan or support plantell the adult which (if any) needs may be met by direct payments, andhelp the adult with deciding how to have the needs met.Care Act – Care Planningwww.monckton.com+44 (0)20 7405 7211Slide72

Section 25 – care / support planningSpecify needs Specify which needs meet the eligibility criteriaSpecify needs LA is going to meet and how it is going to meet themInclude personal budgetIncludes advice and information on what can be done to meet or reduce needs and prevent the development of future needsDuty to take all reasonable steps to agree planCare Act – Care Planning (2)www.monckton.com+44 (0)20 7405 7211Slide73

Section 26 – Personal BudgetsStatement which specifiesCost to LA of meeting needs which it is required or decides to meetAmount the adult must pay towards that costIf there is a sum the LA must pay, that amountMay also specify other sums of public money available, for exampleHousingHealth careWelfareCare Act – Personal Budgetswww.monckton.com+44 (0)20 7405 7211Slide74

Sections 31-33 – Direct PaymentsAdults with capacity – section 31Duty if four conditions metAdults without capacity – section 32Duty if five conditions metRegulations – section 33Direct Payment RegulationsConditions on use of DPs – Regulations 3-4Process requirements – Regulation 5Reviews – Regulation 7Harmonisation with Health (not education) – Regulation 10Care Act – Direct Paymentswww.monckton.com+44 (0)20 7405 7211Slide75

Sections 14-17 – charging and assessing financesSection 14 – power to charge for meeting needs under sections 18-20Limited by reference to minimum income requirementSection 15 – cap on care costsLAs may not charge if total costs accrued exceeds capSection 16 – cap to be adjusted annuallySection 17 – assessment of financial resourcesSee further Charging RegulationsCare Act – Chargingwww.monckton.com+44 (0)20 7405 7211Slide76

Sections 67-68Section 67 – advocates must be involved in assessment and care planning whereIndividual has substantial difficulty in one or more areasNo appropriate person to represent and support Role of advocate – to ‘represent and support’ for purpose of ‘facilitating...involvement’Section 68 – safeguarding enquiries and reviewsAdvocacy Regulations (No 2) – requirements re qualifications of advocates and processCare Act - Advocacywww.monckton.com+44 (0)20 7405 7211Slide77

SafeguardingSections 42-47 – first statutory provisionsSection 42 – duty to make enquiries ‘to decide whether any action should be taken in the adult's case’ (but no duty to act) where reasonable cause to suspect:Needs for care and supportExperiencing or at risk of abuse or neglectAs a result unable to protect himself See Guidance at 6.56 / 14.91 re LA responseCare Act - Safeguardingwww.monckton.com+44 (0)20 7405 7211Slide78

Tribunal (if appeal right exists)Social care and health pilots – effective remedy?Formal complaintChildren Act complaints processNHS complaints processOmbudsmen (LGO / PHSO)Judicial reviewDisabled CYP will often be eligible for legal aidSpecialist advice required asap Dispute resolutionwww.monckton.com+44 (0)20 7405 7211Slide79

Law that now reflects good professional practiceSome elements come with significant resource implications – EHC Plans, rights to services for carers, advocacyOther areas require new ways of thinking – well-being principleReal opportunity despite context of cutsConclusionswww.monckton.com+44 (0)20 7405 7211Slide80

Steve Broach Monckton Chambers email sbroach@monckton.com twitter @stevebroach

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