Luke Clements

Luke Clements is the Cerebra Professor of Law at Leeds University and is a solicitor.

Assessments & Eligibility Criteria

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Briefing by Luke Clements ~ updated August 2017.  For corrections or suggested additions please contact anjames57@gmail.com

 

Assessments – general requirements

The duty to assess under the 2014 Act is mandatory if the person ‘may’ have a need for care and / or support. (sections 19, 21 and 24): there is no requirement for a request: the duty is triggered by the appearance of need.  Once an assessment has commenced, then it has to be completed, which will include a consideration as to whether the person’s needs meet the eligibility criteria.  It appears that in practice some local authorities are suggesting that a ‘what matters to you conversation’ can obviate the need for an assessment.  As James et al note this is mistaken: that it would legally ‘be deeply concerning if people are being ‘fobbed off’ at the [Information Advice and Assistance] stage by a conversation masquerading as an assessment’.[1]

As noted below, the eligibility criteria consider (among other things) the availability of ‘non-local authority’ care and support. When undertaking the assessment, the Act and the regulations require the local authority to have regard to a wide range of factors and, provided these are considered, it is for the local authority to decide how wide and how deep the assessment ranges: ie what is ‘proportionate in the circumstances’. This means that the local authority must look at the need for such things as: support, preventative services, information, advice or assistance and also whether the individual works or wishes to do so; whether they want to participate in education, training or any leisure activity etc.

Although the authority must consider these factors – it is up to the authority how it does this: it is for the authority to decide what is ‘proportionate’.  In this context, proportionality goes to the question of how wide and deep the assessment ranges – and not to whether it is undertaken at all.

Having completed the assessment, if the authority is satisfied that the person has needs for care and / or support, then it must decide if any of these needs meet the eligibility criteria: it is the need for ‘support’ that is the triggering issue, requiring that the authority take the assessment to the next stage.  Section 32 states that where an authority has done an assessment which has revealed that the person has needs for care / support then it must decide if these needs meet the eligibility criteria and, if they do, then it must meet those needs by providing assistance in a variety of ways (listed in section 34).

The Care and Support (Assessment) (Wales) Regulations 2015 (reg 2) require that there must be a named person for every assessment and that she / he must have the skills, knowledge and competence to carry out the assessment and have received training in the carrying out of assessments (reg 3). Part 3 Code of Practice (assessing the needs of individuals) at para 43 stipulates that for this purpose the appropriate levels of qualification ‘include’:[2]

  • either a registered social work or social care practitioner holding a professional qualification at level 5 or above
  • or a person holding a social care qualification at level 4 or above, which includes knowledge and skills undertaking [sic] person centred assessment, under the supervision of a registered social work or social care practitioner

 

Assessments must consider — (a) the person’s circumstances, (b) the person’s personal outcomes, (c) the barriers to achieving these outcomes, (d) the risks if these outcomes are not achieved, and (e) the person’s strengths and capabilities (reg 4).  Part 3 Code of Practice (assessing the needs of individuals) at page 27 considers the risks of meeting need – and contains the troubling suggestion that risk consists of the person ‘becoming too dependent on services and undermine their potential for meeting their personal outcomes’.  It however stresses the importance of the assessment being ‘undertaken jointly with the user’ so that it is ‘led by their preferences and wishes in relation to achieving and enhancing their ability to meet their personal outcomes’.   2016 research on the implementation of the Act found that many participants considered that the assessment process ‘felt like a ‘tick box’ exercise, fitting people into ‘neat administrative boxes’ which meant it was unlikely to provide a bespoke outcome’.[3]  The research also (perhaps surprisingly) found that person-led assessments ‘placed too much onus on the individual and their ability to communicate what support they needed’: that ‘many felt they would have benefitted from knowing what services were available in advance and how those services might help them’.[4]

Copies of assessments must be ‘offered’ to the person assessed (reg 6) and reviews must be undertaken when there has been a ‘significant’ change in circumstances (reg 7).

In relation to the assessment of children in need, assessment guidance is also found in the statutory codes under Part 6 (which is concerned with the special position of ‘looked after and accommodated’ children).  The guidance in relation to children in need stipulates a maximum timescale for completion of the assessment (namely 42 working days from the point of referral[5]).

 

National Assessment and Eligibility Tool

The intention was that the Welsh Government would develop a standard template for assessments – a ‘National Assessment and Eligibility Tool’.  This appears to have been shelved, but the Part 3 Code of Practice (assessing the needs of individuals) at paras 54- 63 identifies a minimum record that must emerge from the assessment.  It stresses (para 56) that it is essential ‘that all practitioners responding to individuals, families or to referrers are familiar with the principles which underpin the assessment of need and are aware of the importance of the information collected and recorded at this stage.’  The obligation to record all of the ‘core data set’ only comes into being when an individual’s needs are deemed to be eligible and a care and support plan, or support plan in respect of a carer, is required (para 59).  The Core Data Set comprises (para 59):

NHS Number                                      Preferred Language / Communication
Title                                                     method / Accessibility requirement
Surname                                             Name(s) of Carer(s) / People with
Forename(s)                                       Parental Responsibility
Preferred Name                                  Relationship
Address and Postcode                      Contact Details for Carer(s) / People
Date of Birth                                       with Parental Responsibility
Telephone                                           Is this a child on the Child Protection
Email Address                                    Register?
Sex                                                      Contact details of Lead Assessment
GP Name and address                       Co-ordinator
School name and address                 Contact details of Lead Care Coordinator
Occupation                                          Information taken by (name)
What other assessments have been Designation
undertaken by other agencies?         Organisation
                                                              Date

 

The Five Key Elements

The guidance (at para 63) Act advises that the assessment process (including consideration of the eligibility criteria) require a comprehensive analysis of five inter-related elements[6], namely:

  • the person’s circumstances;
  • their personal outcomes;
  • the barriers to achieving those outcomes;
  • the risks to the person or to other persons if those outcomes are not achieved; and
  • the person’s strengths and capabilities.

Guidance on these five elements is set out in Annex 1: Guidance on Five Elements of Assessment.

 

Assessment of adults in need (section 19)

The Act makes little change to the duty to assess adults in need.  The duty is triggered on the appearance of need (ie there is no need for a request) and the duty exists regardless of the wealth of the person or the level of their needs. There is a duty to involve carers ‘so far as is feasible’.

The Part 3 Code of Practice (assessing the needs of individuals) at para 80 makes it clear that when undertaking an assessment the authority ‘must identify all presenting needs including those which would be deemed as eligible if a carer was not meeting those needs’.  Although care provided by a ‘willing carer’ is not ignored for eligibility purposes (unlike in the English scheme – see below) the Code explains that carers’ support must be identified:

so that the local authority is able to respond appropriately and quickly where the carer or the child’s family becomes unable or unwilling to meet some or all of the identified care and support needs (para 80).

 

Assessment of children in need (section 21)

The duty to assess the needs of a child ‘in need of care and support’ is a very positive development – not least because there was no explicit statutory duty to assess under the previous legal regime (ie the Children Act 1989, s17).[7]   As with adults in need, the duty is triggered on the appearance of need and the duty exists regardless of the wealth of the person or the level of their needs. As is noted below, the outcome of an assessment may be a specific duty on the local authority to provide support.

In relation to disabled children, section 21(7) creates a presumption that they have needs for additional / substitute care and support.   The relevant guidance stresses that in undertaking the assessment, local authorities must:[8]

identify all presenting needs including those which would be deemed as eligible if a carer was not meeting those needs. This is so that the local authority is able to respond appropriately and quickly where the carer or the child’s family becomes unable or unwilling to meet some or all of the identified care and support needs

 

 

Carers Assessments (section 24)

The Act not only consolidates the existing three Carers Acts,[9] it also removes: (1) the requirement to establish that the carer is providing or intending to provide ‘a substantial amount of care on a regular basis’; and (2) the requirement that carers ‘request’ an assessment – the assessment obligation is triggered by the ‘appearance of need’ (‘where it appears to a local authority’).  The duty is therefore proactive – as page 7 of the Part 3 Code of Practice (assessing the needs of individuals) states:

The duty is triggered if it appears to the local authority that a carer may have needs for support. The duty to assess applies regardless of the authority’s view of the level of support the carer needs or the financial resources he or she has or the financial resources of the person needing care.

 

Section 24 requires that carers must be fully involved in their assessments and makes clear that the duty to assess applies regardless of the authority’s view of the level of the carer’s needs for support, or their financial situation (s24(3)).  It also requires that specific consideration be given to:

  • the extent to which the carer is able, and will continue to be able, to provide care, and the extent to which the carer is willing, and will continue to be willing, to do so (s24(4));
  • whether the carer works or wishes to do so (s24(5));
  • whether the carer is participating in or wishes to participate in education, training or any leisure activity (s24(5));

 

Carers Wales is assessing the extent to which the Act is having its intended positive impact on carers.  The on-line survey is at www.carersuk.org/wales/news/track-the-act.

 

Young carers

In general (and unlike the English legislation[10]) the 2014 Act does not distinguish between the rights of adult carers and those of young carers although there are minor differences in relation to the assessment duty.  Although the local authority must, for both adult carers (s24(4)(c)) and young carers (s24(4)(d)), seek to identify the outcomes that they wish to achieve, for young carers this is qualified by it being ‘to the extent’ that it is ‘appropriate having regard to the carer’s age and understanding’, and the views of the parents of the young carer on this question and their well-being generally (s24(4)(d)).  Young carer assessments must also pay particular regard to the developmental needs of the child, and whether it is appropriate for the child to be providing the care at all (s24(5)(c)).

As with the assessment duty owed to disabled children, (s21(6)) the way a carer’s assessment is undertaken should be ‘proportionate in the circumstances’ (s24(7)).  Proportionality goes to the scope and depth of an assessment – and not (of course) to the question of whether one is undertaken: the duty to assess (where a need may exist) is obligatory.

 

Summary of the carer assessment duty:

Stage 1
There is a pro-active duty on local authorities to offer assessments to all carers where it ‘appears’ to the authority (ie any arm of the authority) that they ‘may’ have needs for support.
Stage 2.
The Act (s24) requires an assessment of all such carers (unless they make a valid refusal – (sections 25 – 27)). Frequently the nature of the need will not be clear until such an assessment has been undertaken.
Stage 3
When undertaking an assessment, section 24 and the regulations require the local authority to have regard to a wide range of factors and section 24(7) states that, provided these are considered, the ‘nature of the needs assessment … is one that the local authority considers proportionate in the circumstances’. This means that the local authority must look at the need for such things as: support, preventative services, information, advice or assistance, and also whether the carer works or wishes to do so; whether they want to participate in education, training or any leisure activity etc.  Although the authority must consider these factors – it is up to the authority how it does this: it is for the authority to decide what is ‘proportionate’.
Stage 4
Having completed the assessment, if the authority is satisfied that the person has needs for ‘support’ then it must decide if any of these needs meet the eligibility criteria: it is the need for ‘support’ that is the triggering issue, requiring that the authority take the assessment to the next stage.
Stage 5
Section 32 states that where an authority has done an assessment which has revealed that the person has needs for care / support then it must decide if these needs meet the eligibility criteria and if they do then it must meet those needs by providing assistance in a variety of ways (listed in section 34).  The support may be provided to the carer – although more commonly it will be provided to the disabled person as a form of replacement care.  The range of supports include (for example): (a) accommodation in a care home, children’s home or premises of some other type; (b) care and support at home or in the community;  (c) services, goods and facilities; (d) information and advice; (e) counselling and advocacy; (f) social work; (g) direct payments; (h) aids and adaptations; and so on (s34(2)).

 

Carers and combined assessments (section 28)

Section 28 enables a local authority to combine the carer’s assessment with the assessment of the person in need – but only where the parties consent.  The only exception to this relates to children under the age of 16 where section 28(6) provides that an assessment can be combined if the authority is satisfied that ‘combining the needs assessment would be consistent with the child’s well-being’.  Part 3 Code of Practice (assessing the needs of individuals) at para 37 states that this would only be where the authority considers that it would be ‘beneficial’.

Local authorities must display flexibility on this question and pay particular attention to the needs of parent carers – for whom a separate assessment may well be beneficial in most cases.  It would be an unlawful fettering of an authority’s discretion to adopt a rigid rule of always combining such assessments.

 

Eligibility criteria (section 32 – 33)[11]

Once the local authority has gathered the relevant information the Act and The Care and Support (Eligibility) (Wales) Regulations 2015[12] require that it decides if the person’s ‘needs’ are such that they meet the eligibility criteria – and if so, that care and support is made available to address those needs.

The eligibility criteria regulations create a process with four stages, and in general terms the criteria apply to all people in need (adults, children and carers) although there are slight variations.   The stages are as follows:

  1. The need arises for a specified reason (ie disability / caring)
  2. The need relates to certain key activities (‘outcomes’)
  3. The person (or if a child, their parent(s)) is unable to meet that need even with the available support from others / the community
  4. The need can’t be met without the local authority providing / arranging support services or Direct Payments

Considering these stages in more detail, the position is as follows:

Stage 1

The eligibility criteria require that for:

Adults in need (reg 3)

  • The need arises from their physical or mental ill-health, age, disability, dependence on alcohol or drugs or other similar circumstances;

Children in need (reg 4)

  • The need arises from the same factors as for an adult (above) or is one that if unmet is likely to have an adverse effect on the child’s development;

Carers (reg 5)

  • The need arises as a result of providing care for either an adult in need (as described by reg 3 above) or a disabled child.

 

Stage 2

The need relates to a set of standard tasks (regs 3, 4 and 5):

  • Ability to carry out self-care or domestic routines [see below for a definition of ‘self-care’];
  • Ability to communicate;
  • Protection from abuse or neglect;
  • Involvement in work, education, learning or in leisure activities;
  • Maintenance or development of family or other significant personal relationships;
  • Development and maintenance of social relationships and involvement in the community

basic self-care’ is defined by reg 1 as ‘tasks that a person carries out as part of daily life including’

  • (i) eating and drinking;
  • (ii) maintaining personal hygiene;
  • (iii) getting up and getting dressed;
  • (iv) moving around the home;
  • (v) preparing meals;
  • (vi) keeping the home clean, safe and hygienic

In addition to the standard tasks listed above, the regulations have two specific eligible tasks – one for adults and one for children.  These are:

For adults / adult carers

  • Fulfilment of caring responsibilities for a child;

For children / child carers

  • Achieving developmental goals.

 

Stage 3

The person (if a child – then ‘and his / her parents’) is not able to meet that need, either—

  • (i) alone,
  • (ii) with the support of others willing to provide;
  • (iii) with the assistance of services in the community to which the adult has access.

This element effectively makes a person ineligible if their carer indicates they are willing to provide support.  It is conceptually flawed since it confuses ‘eligible need’ with the support that is provided to meet a need.  The English criteria do not fall into this error.  As the Statutory Guidance to the Care Act 2014 states (para 6.119):

The eligibility determination must be made based on the adult’s needs and how these impact on their wellbeing. Authorities must only take consideration of whether the adult has a carer, or what needs may be met by a carer after the eligibility determination when a care and support plan is prepared.

The approach of the Welsh criteria is not only problematic for carers: it can also cause significant problems for individuals in need.

An obvious example concerns a situation where a disabled person with substantial care needs is having all these needs met by a ‘willing’ carer.  In this case the local authority would determine that the disabled person is ineligible and the file would be closed.  Subsequently the carer becomes unable to continue caring.  In that case the local authority would have to be contacted and a new assessment requested – and of course considerable delay / harm to wellbeing could result.  Para 83 of the Part 3 Code of Practice (assessing the needs of individuals) seeks to mitigate the flawed approach to eligibility in Wales – by stating:

Where a carer is suddenly unable to meet a care and support need the requirement for a re-assessment must not prevent or delay the local authority from taking urgent and immediate action to meet the care and support needs of the adult or child. Such action should be informed by the most recent assessment undertaken.

 

The Statutory Guidance to the Care Act 2014 is alive to this danger and the English criteria take a diametrically opposite approach, stating at para 6.119:

… . Local authorities are not required to meet any eligible needs which are being met by a carer, but those needs should be recognised and recorded as eligible during the assessment process. This is to ensure that should there be a breakdown in the caring relationship, the needs are already identified as eligible, and therefore local authorities must take steps to meet them without further assessment

 

A further example of the dangers of the approach in the Welsh scheme concerns a disabled person who has a need for intimate care and a strong objection to a family carer providing that support.[13]  If however the family carer were to indicate she/he is willing to provide the relevant care, this could make the disabled person ineligible and therefore remove from them the opportunity of exercising control over their care arrangements.

To correct this perverse element within the criteria, carers could be advised to state clearly, that they are not able (and therefore not willing) to provide care unless the local authority has first determined that the individual in need is eligible.  Then, and only then, will they be able (and therefore willing) to discuss with the individual in need and the authority the nature and extent of the care (if any) they might be willing to provide.

Stage 4

He / she is unlikely to achieve one or more of the personal outcomes unless the local authority provides or arranges care and support to meet the need (including by a Direct Payment).

It is difficult to see how – in practical terms – this requirement raises a distinct question to that at the third stage.  One possible interpretation is that a person may be unable to carry out one of the basic tasks detailed in stage 2 – but this is not of concern to them.  This however seems problematical.  Alternatively it might be that, the inability to carry out the task does not have a significant impact on them.  Although this is a less problematical way of making practical sense of the fourth ground, the phrase ‘significant impact’ does not appear in the eligibility criteria (it is however a key requirement of the English criteria).

 

The ‘can’ and ‘can only’ test

The Welsh Government initially described the above criteria as creating a ‘can and can only’ test.  This attracted considerable criticism, including the suggestion that it placed the onus on individuals to prove that they had tried generalised community support services (and that these had failed) before they could then access personalised support (such as a direct payment).  The Minister strongly rejected this analysis, asserting:[14]

I have read of the anxiety that has been raised that the Act somehow requires users to demonstrate exhaustively that they have explored every other possible avenue of support before becoming eligible for local authority assistance. That is emphatically not the case under these regulations. The responsibility here lies with the assessor, not with the person being assessed

 

The Part 4 Code (Meeting Needs) restates the Minister’s assurance in the following terms:

  1. The eligibility criteria must not be used as a tool to require individuals to demonstrate they have exhausted every other possible avenue of support before becoming eligible for local authority assistance.
  2. It is the responsibility of the local authority to identify and record … how the personal outcomes will be achieved.

 

Eligibility and parents caring for disabled children

In relation to people with a ‘parental role’[15] caring for disabled children, the eligibility regulations appear incongruous.  The regulations fail to distinguish between a ‘parent’ and a ‘carer’ and, importantly fail to recognise that a parent of a disabled child fulfils both roles.  This is most evident in the regulations failure to appreciate that such a person may not be able to provide care for their child – an omission that appears inconsistent with the provisions of the primary statute.  Section 24(4), for example, requires that authorities:

(a) assess the extent to which the carer is able, and will continue to be able, to provide care for the person for whom the carer provides or intends to provide care,

(b) assess the extent to which the carer is willing, and will continue to be willing, to do so,

(c) in the case of a carer who is an adult, seek to identify the outcomes that the carer wishes to achieve,

…. …

Section 24(5) then requires that authorities must have regard to—

(a) whether the carer works or wishes to do so,

(b) whether the carer is participating in or wishes to participate in education, training or any leisure activity, and

… …

This detail in section 24 and the silence in the regulations pose the question as to how the regulations can be squared with the obligations in the primary statute to consider the ‘ability / willingness / work, education etc aspirations’.  The mere fact that the regulations make no mention of these factors cannot mean they are not relevant (subordinate legislation cannot undermine the primary statute).

Take for example a hard-pressed parent of a disabled child (or indeed an aunt[16] caring for her disabled nieces / nephews) who states, during an assessment, that she is unable to continue caring (unless support is provided) and that it is essential that she continue in paid work.  What would be the position if the local authority then ignores these factors and focuses solely on the eligibility regulations and in accordance with these, determines that she is ineligible for support.

The above analysis suggest that there could be a good case for arguing that the regulations are either ultra vires the Act; or that there has to be read into them a requirement to consider the issues mandated by subsections 24(4) and 24(5); or that there is a general public law duty to give reasons as to why the factors mandated in subsections 24(4) and 24(5) are not determinative in the particular case.

It is self-evident that ‘educating, nursing and caring’ are activities fundamental to parenthood.  It is equally self-evident that parents require others to help educate their child; help nurse their child and if the child or the parent has special needs, help care for the child.  The failure of the regulations to recognise that a person may be passionately committed to being a parent (ie ‘willing’ in the pedestrian language of the Act) but incapable of providing 24 x 7 care for their child, is a glaring omission from the legislative framework and one that will have to be filled by guidance and if needs be, case law.

 

Copies of assessments

Local authorities must provide a copy of the assessment to the adult / their authorised person or where the assessment is a of child’s needs, to the child, their parents and any other person authorised to act on behalf of the child.[17]  The Part 4 Code of Practice (Meeting Needs) stresses that the authority must not only provide these persons with a record of all elements of the assessment and eligibility tool (para 24) but it should also provide ‘a copy of the care and support plan, support plan or closure statement (as the case may be) to the person to whom the plan or closure statement relates and to any person authorised to act on behalf of that person’ (para 95).

 
[1] A James and L Clements What matters to Carers? Is a ‘What Matters’ conversation an assessment? in Rhydian: Wales Social Welfare Law on-line (2017) 1-4.
[2] The use of the word ‘include’ is clearly intended to create ambiguity – in the sense that the list is illustrative rather than exhaustive.
[3] Citizens Advice Cymru Accessing and Paying for Social Care in Wales (2016) page 25.
[4] Citizens Advice Cymru Accessing and Paying for Social Care in Wales (2016) page 25.
[5] Para 78 of the Part 3 Code.
[6] The five key elements are analysed in greater detail in Annex 1 to the Part 3 Code of Practice (assessing the needs of individuals).
[7] Although in in R (G) v. Barnet LBC and others [2003] UKHL 57 the House of Lords held that in general such a duty existed in public law.
[8] Para 80 to the Part 3 Code.
[9] The Carers (Recognition & Services) Act 1995; Carers & Disabled Children Act 2000; and the Carers (Equal Opportunities) Act 2004.
[10] sections 63 – 64 Care Act 2014 and section 17ZA Children Act 1989.
[11] For a background briefing on eligibility see Amy Clifton, Who will be entitled to care and support in Wales? National Assembly for Wales Research Service 10th July 2015.
[12] SI 1578 (W. 187).
[13] See for example Cerebra Legal Entitlements Research Project Digest of Cases 2014 Terri’s Story p30.
[14] Mark Drakeford The Minister for Health and Social Services National Assembly for Wales The Record of Proceedings 14/07/2015.  However the Assembly Research Service in its Key issues for the Fifth Assembly (2016) report indicates that the ‘can and can only’ criteria remains – see page 42, Amy Clifton ‘The future of social care’ and see also Stephen Boyce ‘Carers’ Week 2016’ in In Brief (National Assembly for Wales Research Service 2016) which refers to the eligibility criteria’s ‘can and can only’ test and notes that there ‘are worries that this may mean more of this burden [caring] will fall on carers.’
[15] Which phrase is defined as including ‘relatives who play a role in looking after the child’ – see The Care and Support (Eligibility) (Wales) Regulations 2015 reg 4(1)(c).
[16] At law such a person has ‘responsibility’ to care and yet, because they come within the definition of a ‘person in a parental role’ (‘relatives who play a role in looking after the child’ –The Care and Support (Eligibility) (Wales) Regulations 2015 reg 4(1)(c)) their willingness to care and/or their desire to work or to participate in education / training appear to be ignored by the regulations.
[17] The Care and Support (Assessment) (Wales) Regulations 2015. 1305 (W. 111) reg 6 and see also Part 3 Code of Practice (assessing the needs of individuals) para 116.