12 Assessments under sections 9 and 10: further provision
This clause requires the Secretary of State to make regulations about how an assessment is carried out, to provide clarity and ensure consistent practice. Regulations may, for instance, require local authorities to consider the needs of the whole family when carrying out an assessment on an adult. They may also specify when a specialist assessment must be carried out (for instance, an assessment for NHS Continuing Healthcare), and enable self-assessment by the person themselves.
(1) Regulations must make further provision about carrying out a needs or carer’s assessment; the regulations may, in particular—
(a) require the local authority, in carrying out the assessment, to have regard to the needs of the family of the person to whom the assessment relates;
(b) specify other matters to which the local authority must have regard in carrying out the assessment (including, in particular, the matters to which it must have regard in seeking to ensure that the assessment is carried out in a proportionate manner);
(c) specify circumstances in which a person with expertise in a specified matter must carry out the assessment on behalf of the local authority;
(d) specify circumstances in which the person to whom the assessment relates, or a specified person or person of a specified description, may carry out the assessment jointly with the local authority;
(e) specify persons to whom the local authority must give a copy of the assessment (including persons to whom the adult asks the authority to give a copy).
(2) The regulations may include provision for facilitating the carrying out of a needs or carer’s assessment in circumstances specified under subsection (1)(c) or (d); they may, for example, give the local authority power to provide the person carrying out the assessment—
(a) in the case of a needs assessment, with information about the adult to whom the assessment relates;
(b) in the case of a carer’s assessment, with information about the carer and about the adult needing care;
(c) in either case, with whatever resources, or with access to whatever facilities, the authority thinks will be required to carry out the assessment.
(3) A local authority may, where an adult has a carer, combine a needs assessment with a carer’s assessment; but the authority may do so only if the adult needing care and the carer agree.
(4) A local authority may carry out a needs or carer’s assessment at the same time as it or another body carries out another assessment in the case of the person to whom the assessment relates or a carer the person has.
(5) For the purposes of subsection (4)—
(a) the local authority may carry out the other assessment on behalf of or jointly with the other body, or
(b) if the other body has already arranged for the other assessment to be carried out by it jointly with another person, the local authority may carry out the other assessment jointly with the other body and that other person.
(6) A reference to a needs or carer’s assessment includes a reference to a needs or carer’s assessment (as the case may be) contained in a combined assessment under subsection (3).
(7) A reference to an assessment includes a reference to part of an assessment.
I think that it is important to note that the assessment of needs, under current community care law, includes not only the stage of identifying the needs, but also deciding eligibility, AND then deciding how to resource and make arrangements for meeting need. This is because the whole of the assessment duty is not merely in s47 of the 1990 Act, but refers back to the nature of the function in play, such as the duty to make arrangements to meet the needs necessitating the State’s intervention, under the CSDPA.
That means that the assessment function is not therefore finished, until there is a care and support plan; and that has been significant in the courts’ approach to the obligation to be transparent logical and rational and coherent, at the support planning stage, when a council has identified arrangements or a particular monetary sum for a budget. The courts have not been impressed with the idea that a person can just be sent off to the complaints system, unless or until the council has done ITS side of the work, and they have said that the work includes being procedurally fair, and explaining the council’s evidence basis for saying ‘We think that this is enough!’ in terms of the care package or funding being offered….
This clause seems to be about assessment of needs, and not about the support planning stage in clause 8, so this worries me. I am particularly concerned that there is no reference to regulations making provision for the giving of reasons or for any reconsideration stage, between the identification of an indicative budget (if the Resource Allocation system lasts until 2015) and the finalisation of the support plan and its final signing off.
My concern is that the benefits of the Savva and Cambridgeshire (KM) cases about managed budgets and direct payments (transparency, proper engagement, an evidence basis, and a nexus between needs and points and pounds and costs etc) will be lost in the introduction of new law, and that this would be highly retrograde for citizens’ rights and the accountability of the council sector.
Even when one looks onwards to clause 13, about eligibility criteria, there is no further process right of any person refused or denied eligibility, to reasons or engagement. One might respond that this will no doubt be covered in guidance, such as is stated para 106 of the current Putting People First guidance, but I cannot see any reason not to put it in regulations.
Whilst we welcome the potential for regulation specifying when adults can carry out self-assessments we also think that the regulation should include provision for independent advocacy and representation for an adult. The lack of self-awareness associated with some conditions means that self-assessment will not be accurate or meet needs, and conditions will deteriorate – ending up being a crisis and costing more.
Where others are contracted to carry out assessments for a local authority, we feel that qualified, experienced and independent (from provision) practitioners are needed.
There is concern that if the Secretary of State can make further regulations at a later date, this takes away an element of control in the process from local authorities.
Overall we endorse the tone and thrust of the Draft Care and Support Bill and we strongly support the move to give people who need support the choice and control required so that they are in control of their support and their lives.
However we are extremely concerned that some sections of the Bill will be used in a way that is counter to the choice and control agenda and have the potential to put many people in a situation where they have less control than they presently enjoy.
Although we appreciate that the guidance that will be produced will ensure that the choice and control agenda is promoted we still believe that there is a need to change some sections of the Bill as it stands in the Draft form.
Sections we would wish to see revised:
Part 1, 12 Assessment under sections 9 and 10: further provision, (3)
We do not believe under any circumstances that local authorities should have the power to combine the needs assessments of an individual that needs support with their carers needs assessment. We believe this would have the potential in some instances for the person who needs support to lose their individual identity and to lose control of the support they need. Although this power is qualified by the statement ‘the authority may do so only if the adult needing care and the carer agree’ we have seen too many instances of subtle coercion by some practitioners who we believe because of the power imbalance in that interaction are able to ‘persuade’ people to ‘agree’ to this.
Therefore we would like to see this taken out of the Bill.
Self direct is a membership organisation and its members provide support for over 108,000 people across the UK. The views expressed in this response do not necessarily reflect the views of all self direct members.
The views expressed above are based on our experience of seeing firsthand how legislation and guidance are used; experienced gathered through working with 1,000s of professionals / practitioners across the social and health care sector whose job it is to put Government policy, legislation and guidance into practice. It is also based on our extensive knowledge and understanding of how people that need support and their carers interact with professionals / practitioners in the social and health care sector.
The Bill’s failure to recognise or endorse the need for independent advocacy is a continuing concern. There is an important opportunity to address this omission here. An additional sub-clause (f) should be added to Clause 12 (1):
‘specify the circumstances in which the person to whom the assessment relates is entitled to the appointment of an independent advocate.’
Guidance could then draw on the Disabled Person’s Act (1986) or the management guidance to the NHS and Community Care Act (1990)
The Law Commission’s recommendation 12 stated that the assessment regulations should recreate existing guidance for a specialist assessment for deafblind people. As father of a deafblind daughter I believe this additional assessment is essential in ensuring that the individual can undertake what everyone does all the time without having to seek permission, which is to communicate. It is the combination of the dual sensory loss which is so critical. The capacity must be available all the time, without it the prospect of well-being outlined in clause 1 is not achievable. There is a very high risk of mental health problems if there is no communication.