The Law

You are considered to be disabled under the Equality Act 2010 if you have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities.

What ‘substantial’ and ‘long-term’ mean

• ‘Substantial’ is more than minor or trivial, e.g. it takes much longer than it usually would to complete a daily task like getting dressed
• ‘Long-term’ means 12 months or more, e.g. a breathing condition that develops as a result of a lung infection

Progressive conditions

A progressive condition is one that gets worse over time. People with progressive conditions can be classed as disabled.

However, you automatically meet the disability definition under the Equality Act 2010 from the day you are diagnosed with HIV infection, cancer, or multiple sclerosis.

• Addiction to alcohol / nicotine / non-prescription drugs
• Hayfever
• Tendency to set fires / steal / commit physical or sexual abuse of others
• Exhibitionism
• Voyeurism
• Tattoos and body piercing

The six principles of the Care Act are:

• Empowerment
• Protection
• Prevention
• Proportionality
• Partnership
• Accountability

The Care Act sets out some ‘key principles‘ on how health and social care professionals should work with you. Those principles are:

• You know best
• Your views, wishes, feelings and beliefs should always be considered
• The main aim of professionals should be on your well-being, on reducing your need for care and support, and on reducing the likelihood that you will need care and support in the future
• Any decisions made should take into account all relevant circumstances
• Any decisions should be made with your involvement
• Your well-being should be balanced with that of any involved family and friends
• Professionals should always work to protect you and other people from abuse and neglect
• Professionals should ensure that any actions taken to support or protect you affect your rights and freedom as little as possible

The Act sets out when the local authority has a responsibility to meet someone’s care and support needs. It also sets out how it can do so even if it does not have to. The Act also says what must happen next to help the person make decisions about how their needs should be met.

• The Act gives local authorities a new legal responsibility to provide a care and support plan (or a support plan in the case of a carer)
• For the first time, the Act provides people with a legal entitlement to a personal budget, which is an important part of the care and support plan, or support plan. The personal budget must be included in every plan, unless the person is only receiving intermediate care or reablement support to meet their identified needs
• This adds to a person’s right to ask for a direct payment to meet some or all of their needs. Provided that the direct payment is used to meet the needs identified in the plan, the person should have freedom over how the money is spent
• Even when an assessment says that someone does not have needs that the local authority should meet, the local authority must advise people about what needs they do have, and how to meet them or prevent further needs from developing
• The person concerned must be involved in developing their plan. The local authority will have to do everything it reasonably can to agree the plan with them
• It must also provide an independent advocate to help the person take part in the planning and review process if that person would otherwise have substantial difficulty in doing so
• Completing the planning process and putting in place care and support arrangements does not mean the end of the local authority’s responsibilities. The local authority has a legal responsibility to review the plan to make sure that the adult’s needs and outcomes continue to be met over time. If anything has changed, the authority must carry out a new assessment. The person themselves also has the right to request a review of their care and support plan if they wish.

The Care Act helps to improve people’s independence and wellbeing. It makes it clear that local authorities must provide or arrange services that help prevent people developing needs for care and support, or delay people deteriorating to the point they need ongoing care and support.

Local authorities have to consider various factors:

• What services, facilities and resources are already available in the area (for example, local voluntary and community groups), and how these might help local people
• Identifying people in the local area who might have care and support needs that are not being met
• Identifying carers in the area who might have support needs that are not being met

In taking on this role, local authorities need to work with their communities and provide or arrange services that help to keep people well and independent. This should include identifying the local support and resources already available and helping people to access them.

Local authorities should also provide or arrange a range of services which are aimed at reducing needs and helping people regain skills, for instance after a spell in hospital. They should work with other partners, like the NHS, to think about what types of service local people may need now and in the future.

Local authorities need to provide comprehensive information and advice about care and support services in their local area. This is to help people to understand how care and support services work locally, the care and funding options available, and how people can access care and support services.

The Act clearly sets out that they must provide information on:

• What types of care and support are available, e.g. specialised dementia care, befriending services, reablement, personal assistance, residential care etc
• The range of care and support services available to local people, i.e. what local providers offer certain types of services
• What process local people need to use to get care and support that is available
• Where local people can find independent financial advice about care and support and help them to access it
• How people can raise concerns about the safety or wellbeing of someone who has care and support needs

Local authorities must also help people to benefit from independent financial advice, so that they can get support to plan and prepare for the future costs of care. All information and advice must be provided in formats that help people to understand, regardless of their needs. This may include a range of different types of information and include working with partners to provide information on different services together.

The Care Act requires local authorities to help develop a market that delivers a wide range of sustainable, high-quality care and support services, that will be available to their communities.

When buying and arranging services, local authorities must consider how they might affect an individual’s wellbeing. This makes it clear that local authorities should think about whether their approaches to buying and arranging services support and promote the wellbeing of people receiving those services.

Local Providers

Local authorities should also engage with local providers, to help each other understand what services are likely to be needed in the future, and what new types of support should be developed. To do this, authorities should engage with local people about their needs and aspirations. A wider range of high-quality services aims to give people more control and help them to make more effective and personalised choices over their care. They should therefore get better care that works for them.

The Act sets out a new legal duty for an adult’s ‘eligible needs’ to be met by the local authority, subject to their financial circumstances. Their eligible needs are those that are determined after the assessment.

The Act says clearly that a person will be entitled to have their needs met when:

• The adult has ‘eligible’ needs
• The adult is ‘ordinarily resident’ in the local area (which means their established home is there)
• Any of 5 situations apply to them

These are the 5 situations:

• The type of care and support they need is provided free of charge
• The person cannot afford to pay the full cost of their care and support
• The person asks the local authority to meet their needs
• The person does not have mental capacity, and has no one else to arrange care for them
• When the cap on care costs comes into force, their total care and support costs have exceeded the cap

What happens if the local authority must meet their needs?

The local authority must help the person to make decisions about how they want their needs to be met and prepare a care and support plan. Assessments are free of charge.

Under the Act, there is more flexibility to focus on what the person needs and what they want to achieve, and to design a package of care and support that suits them. ‘Meeting needs’ allows for different approaches, so that they can get the right level and type of care and support when they need it. A person will still be able to receive the same types of care and support as before. If their needs can be best met in a care home, that is what should be arranged.

Some types of care and support are provided free of charge but often the local authority will charge a cost. Depending on a person’s finances, a local authority may ask an individual to contribute towards the costs of their care (up to and including the full amount).

In cases where the costs of care would reduce a person’s income below a set level, a local authority will pay some of the costs to make sure that the person is left with this minimum level of income. This ensures people will still receive the care they need in cases where they have only modest resources.

In any other cases, the adult can still ask the local authority, regardless of their finances, to arrange their care and support for them. It makes it less likely that people who are uncertain about the system, or lack confidence to arrange their care, do not go without. However, they will still need to pay for their care and support if they have adequate financial resources.

If people are due to pay charges for their care and support, they may be entitled to a ‘deferred payment agreement’, through which they delay charges and repay the local authority at a later date.

An assessment is how a local authority decides whether a person needs care and support to help them live their day-to-day life.

The assessment must be carried out by an appropriately trained assessor, for instance a social worker, who will consider a number of factors, such as:

• The person’s needs and how they impact on their wellbeing, for instance, a need for help with getting dressed or support to get to work
• The outcomes that matter to the person, for example, whether they are lonely and want to make new friends
• The person’s other circumstances, for example, whether they live alone or whether someone supports them

The aim is to get a full picture of the person and what needs and goals they may have. After carrying out the assessment, the local authority will then consider whether any of the needs identified are eligible for support.

Because not all care needs are met by the State, the local authority uses an eligibility framework to decide which needs are eligible to be met by public care and support.

Click here to read the full Care Act

If you think that the principles of the Care Act have not been adhered to in your circumstance, you can talk this over with one of our fully trained advisors by Telephone 01733 265551, or Email info@disabilitypeterborough.org