Care and support for adults and children
Local authorities have duties under the Social Services and Well-being (Wales) Act 2014 (the 2014 Act) to assess and meet the needs of adults and children for care and support, and to assess and meet the needs of carers for support, including adult carers and child carers.
Part 5 of the 2014 Act covers charging and financial assessment in relation to services provided or arranged by local authorities under the Act.
Under regulations made under Part 4 of the 2014 Act, local authorities have powers to provide direct payments to meet the care and support needs of an adult, to meet the care and support needs of a child and to meet the support needs of a carer.
Ordinary residence is a key concept in determining which local authority has a duty to assess and meet the care and/ or support needs of an individual under the 2014 Act - see below.
Assessing and meeting needs
Parts 3 and 4 of the 2014 Act set out the duties of local authorities to assess and meet needs.
Broadly, Part 3 (assessing needs) provides for the circumstances in which a local authority must assess a person’s needs for care and support or a carer’s needs for support and for how assessments must be carried out.
Part 4 (meeting needs) provides for the circumstances in which needs for care and support or support for carers may or must be met by local authorities and for how needs are to be met.
Assessing needs
Part 3 of the 2014 Act sets out the requirement of local authorities to assess the needs of individuals for care and/or support. Section 19 requires local authorities to assess whether an adult has needs for care and support and if so, what those needs are. The duty is triggered where it appears to a local authority that an adult may have such needs.
Section 21 makes similar provision in relation to the assessment and identification of a child's needs for care and support. Local authorities are required to assess whether a child has needs for care and support in addition to, or instead of, the care and support provided by the child's family and if so, what those needs are. The duty is triggered where it appears to a local authority that a child may need such care and support. A disabled child is presumed to need care and support in addition to, or instead of, the care and support provided by the child's family. This means that in most cases a local authority will be obliged to assess the needs of a disabled child.
Section 24 also requires a local authority to carry out an assessment of a carer's needs for support. Again, the duty to assess is triggered if it appears to the local authority that a carer may have needs for support.
“Carer” is defined in section 3(4) of the 2014 Act as a person who provides or intends to provide care for an adult or disabled child (disability being defined in section 3(5) by reference to the Equality Act 2010), subject to certain exceptions.
Regulations about carrying out needs assessments have been made - see the Care and Support (Assessment) (Wales) Regulations 2015.
Meeting needs
Part 4 of the 2014 Act deals with the requirement on local authorities to meet individuals’ needs for care and/or support. The Act is not prescriptive about how local authorities can meet the needs of adults, children and carers for care and/or support, but section 34(1) gives examples of the ways needs can be met, including by the local authority arranging for someone else to provide something or by providing something itself. Section 34(2) also gives examples of what may be provided or arranged to meet needs, including accommodation, care and support at home or in the community and payments (including direct payments).
Section 32 provides that the duty to meet needs for care and support under Part 4 of the 2014 Act will arise where it has been determined that the needs meet the eligibility criteria set out in the Care and Support (Eligibility) (Wales) Regulations 2015. The duty is also engaged, even if the needs do not meet the eligibility criteria, where it has been determined that it is nevertheless necessary to meet the needs in order to protect the adult from abuse or neglect, or a risk of abuse or neglect or to protect the child from abuse or neglect or a risk of abuse or neglect, or other harm or a risk of such harm.
Exceptions
There are some exceptions to the local authority’s powers and duties to meet needs under Part 4 of the 2014 Act.
Section 46 applies in relation to adults who are subject to immigration control within the meaning of section 115 of the Immigration and Asylum Act 1999. A local authority may not meet the care and support needs of such an adult which have arisen solely because the adult is destitute or because of the physical effects, anticipated or actual, of being destitute.
Section 47 of the 2014 Act sets out limitations on a local authority's powers to provide health services. A local authority may not meet a person’s need for care and support by providing a service which must be provided under the National Health Services (Wales) Act 2006 (or other specified health enactments). The starting point is that a local authority is not permitted to meet a person's needs for care and support by providing health services which are required to be provided under a health enactment except in specified circumstances. This prohibition also applies in relation to a local authority's powers to provide preventative services under section 15.
This prohibition does not apply to the provision of health services which are “incidental or ancillary” to something else that the local authority is doing to meet to meet a person's needs under sections 35 to 45 (meeting needs of adults, children and carers for care and/or support) or to the provision of other services under section 15 (preventative services). Local authorities can in certain circumstances allow staff with appropriate training, support and supervision to take on certain specified health related tasks whilst providing social care. An example of this is the provision of support with the administration of some medication. Even where a local authority does have the power to provide health services which are incidental or ancillary to something else which is being done, they are still prohibited from meeting needs or providing preventative services by providing or arranging the provision of nursing care by a registered nurse.
This prohibition on a local authority providing nursing care does not prevent it from arranging for the provision of nursing care and accommodation in a nursing home, provided consent has been obtained from the relevant NHS body (specified in the Care and Support (Provision of Health Services) (Wales) Regulations 2015), or, if the case is urgent, the arrangements made are temporary and consent is obtained as soon as feasible. Those Regulations also make provision for the resolution of disputes between a local authority and an NHS body about whether or not any health services are required to be provided under a health enactment. Section 48 of the 2014 Act provides for other restrictions on how local authorities can meet an adult's needs for care and support or provide preventative services. In particular they are prohibited from doing anything which a local authority would be required to do under the Housing (Wales) Act 2014 (the 2014 Housing Act). This means, for example, that a local authority cannot meet needs for the purposes of the Social Services and Well-being Act 2014 by providing accommodation if they are required (or another local authority is required) to provide accommodation under their duties towards homeless people under the 2014 Housing Act. This does not prevent local authorities from providing more specific services (such as housing adaptations), or from working jointly with housing authorities.
Restrictions
Section 34 of the 2014 Act provides that making payments is one of the ways that a local authority may meet an individual's needs for care and support, including direct payments. Section 49 sets limits on the circumstances in which payments may be made by a local authority to meet a person’s needs for care and support, but provides that payment are permissible in certain circumstances, including where the local authority considers the person’s needs are urgent and it would not be reasonably practicable to meet those needs in any other way or in the course of contracting for the provision of services. Regulations may set out other circumstances when payments may be permitted.
Section 49 also sets limits on the extent to which payments can be used in the discharge of a local authority's duties to provide preventative services under section 15.
Care plans
Where a local authority is required to meet a person’s needs for care and support under Part 4, it is also required to prepare and maintain a care and support plan (or a support plan in the case of a carer) in relation to that person.
The plan must be kept under review. Where a local authority is satisfied that the circumstances of the person to whom the plan relates have changed in way that affects the plan, the authority must carry out such assessments as it considers appropriate and revise the plan.
Regulations have been made about the preparation of plans under Part 4, the contents of plans and the review and revision of plans - see the Care and Support (Care Planning) (Wales) Regulations 2015.
Requirements for care and support plans for looked after children are covered in Part 6 of the 2014 Act - see section 83 of that Act and the Care Planning, Placement and Case Review (Wales) Regulations 2015.
Where an application is made on which a care order might be made with respect to a child, section 31A of the Children Act 1989 requires the appropriate local authority to prepare a plan (sometimes referred to as “a section 31A care plan”) for the future care of the child.
Portability of care and support
Section 56 of the 2014 Act provides for what is to happen when a person who has needs for care and support that a local authority is required to meet moves from the area of one local authority to another.
When the local authority (the 'sending authority') that is under a duty to meet the person's needs is notified that the person intends to move to the area of another local authority in Wales, and is satisfied that the move is likely to happen, it must notify that other authority (the 'receiving authority') of the person's intention to move. It must also provide it with a copy of the person's care and support plan.
The sending authority must also provide any other information about the person, together with information on the person's carer, if there is one that the receiving authority requests (for example a copy of the carer's support plan).
When the receiving authority is satisfied that the person is moving to its area, it must notify the sending authority of this and provide the person (and their carer if there is one) with appropriate information. If the person is a child, it must also provide appropriate information to any person with parental responsibility for the child.
The receiving authority must assess the person moving into its area, paying particular regard to any change in the person's care and support needs arising from the move. It must also have regard to the care and support plan forwarded by the sending authority.
On the day that the person moves to its area, if the receiving authority has not yet carried out an assessment, or has yet to carry out any other steps that need to be taken, it must meet the person’s care and support needs set out in the plan that was prepared by the sending authority. It must do so until it completes its own assessment along with any other steps that need to be taken.
Codes of Practice have been issued under section 145 of the 2014 Act on the exercise of social services functions under Part 3 (Assessment) and Part 4 (Meeting needs) of that Act.
Charging and financial assessment
Imposition of charges
Part 5 of the 2014 Act covers charging and financial assessment in relation to services provided or arranged by local authorities under the Act.
A local authority may impose a charge for providing or arranging the provision of care and support or support. Such a charge can only be for costs the local authority incurs in meeting the needs for which the charge is made, although the authority can recover an additional charge (often referred to as a “brokerage charge”) for arranging for the provision of care and support for an adult whose financial resources are above the financial limit (often referred to as a “self-funder”) but who nonetheless asks the authority to meet his or her needs.
Where care and support is provided to an adult (whether to meet the adult's own needs or to meet the needs of the adult's carer), the charge may be imposed on that adult.
Where care and support is provided to a child (whether to meet the child's own needs or to meet the needs of the child's carer), the charge may be imposed on any adult with parental responsibility for the child. Where a child's needs are met by the provision of something to an adult, the charge may be imposed on that adult.
Where the charge is in respect of support provided to a carer, a charge can be imposed on an adult carer, or in the case of a child carer, on any adult with parental responsibility for the child.
The Welsh Ministers have the power to make regulations about the way that local authorities exercise their powers to charge for social care services. Regulations can also disapply a local authority's power to impose a charge and which may instead require the local authority to provide care and support or support free of charge.
See Part 2 of the Care and Support (Charging) (Wales) Regulations 2015.
Financial assessments
A local authority must carry out a financial assessment of a person's resources when it has concluded that it will meet their needs for care and support or support.
The Welsh Ministers must make regulations about the way that financial assessments are to be undertaken by a local authority. The regulations must provide for the calculation of an eligible person's income and capital. They can also provide for the extent to which either is to be regarded or disregarded in the calculation of charges to be imposed, the circumstances in which a person will be deemed as having financial resources above a set threshold and circumstances in which a new financial assessment must or may be carried out.
Welsh Ministers also have the power to make regulations that set out the circumstances in which the duty to carry out a financial assessment is disapplied.
See the Care and Support (Financial Assessment) (Wales) Regulations 2015.
Determinations as to a person’s ability to pay a charge
A local authority must determine, in light of the financial assessment it has undertaken, whether it is reasonably practicable for a person to pay its standard charge for the service and, if not, how much it is reasonably practicable for the person to pay (if anything).
The Welsh Ministers must make regulations which make further provision regarding how to determine the ability to pay a charge for care and support or support.
See Part 2 of the Care and Support (Charging) (Wales) Regulations 2015.
A local authority must give effect to any determination of a person's ability to pay a charge.
Deferred payment agreements
The Welsh Ministers have the power to make regulations about the circumstances in which a person whose needs are being met by a local authority, or whose needs are going to be met, may enter into arrangements with that local authority to defer any charges that will be imposed upon the person in respect of the provision of such services. An arrangement made under this section is known as a “deferred payment agreement”.
The Care and Support (Deferred Payments) (Wales) Regulations 2015 include the interest which can be charged and the duration of the deferred payment agreement amongst other matters.
Charging for preventative services and assistance
The Welsh Ministers have the power to make regulations about a local authority's ability to impose a charge for the provision of preventative services and assistance but such regulations cannot impose a charge upon a child -
see Part 3 of the Care and Support (Charging) (Wales) Regulations 2015.
Reviews relating to charging
The Welsh Ministers can make regulations about a local authority's obligation to undertake a review of a decision made about the charges imposed, a determination as to a person’s ability to pay a charge or decisions relating to the liability of a person make a payment where there has been a transfer of assets to avoid charges.
Such regulations may also include provision to specify the procedure to be followed, as well as who can request the review and the time period in which a request for a review is to be made.
See the Care and Support (Review of Charging Decisions and Determinations) (Wales) Regulations 2015.
Direct payments
Direct payments are monetary amounts made available by local authorities to individuals, or their representative, to enable them to meet their care and support needs; or in the case of a carer, their support needs.
Direct payments replace care and support provided directly, or commissioned by, a local authority. They can be for all, or part, of a person’s care and support needs.
Under regulations made under sections 50 to 52 of the 2014 Act, local authorities have powers to provide direct payments to meet the care and support needs of an adult, to meet the care and support needs of a child and to meet the support needs of a carer.
Direct payments to meet an adult’s needs
An adult with capacity must consent to receiving payments instead of services. Where a person does not have capacity then consent to the making of direct payments can be given in a number of ways. If there is a person authorised under the Mental Capacity Act 2005 then that person can consent, as the recipient of the payments, or can consent to the payments being made to another person who must also consent. If there is no-one authorised under the 2005 Act then a person willing to be the recipient of the payments can give consent so long as the other relevant conditions of this section are met.
In the case of an adult with capacity or without capacity, payments can be made if the recipient of the payment might not be able to manage the payment him or herself but is capable of doing so with support which is available. In both cases there is a need for a local authority to be satisfied that making the payments is an appropriate way of meeting the adult's care needs. Additionally, where the adult does not have capacity the local authority must be satisfied that the recipient of the payment will act in the adult's best interests.
Direct payments to meet a child's needs
Payments can be made to a person with parental responsibility for a child who has needs for care and support, or to the child who has needs for care and support.
The person to whom the payments are to be made must consent to the making of the payments. Where the direct payments are being made to an adult or a child aged 16 or 17, the local authority must believe the person who is to receive the payments has the capacity to consent to the making of the payments. Where the person is a child under the age of 16, the local authority must be satisfied they have sufficient understanding to make an informed choice about receiving direct payments.
In all cases the local authority must be satisfied that making the payments is an appropriate way of meeting the child's needs, that the well-being of the child will be safeguarded and promoted by the making of the payments and that the person who is to receive the payments is capable of managing them by him or herself or with support.
Direct payments to meet a carer's needs
Direct payments can be made to meet the support needs of a carer. The direct payments must be made to the carer himself or herself, who must consent to the making of the payments. Where the carer is an adult, or a child aged 16 or 17 the local authority must believe he or she has the capacity to consent to the making of the payments. Where the carer is a child aged under 16 the local authority must be satisfied that they have sufficient understanding to make an informed choice about receiving direct payments.
In all cases the local authority must be satisfied that making the payments is an appropriate way of meeting the carer's needs and that the carer is capable of managing the payments, whether by him or herself, or with support.
Ordinary residence
Ordinary residence is a key concept in determining which local authority has a duty to assess and meet the care and/ or support needs of an individual under Parts 3, 4 and 6 of the 2014 Act. Determining which local authority has a duty to assess.
Section 19 requires that where an adult may have needs for care and support the local authority must assess whether the adult does have such needs, and if so, what those needs are. This duty applies to any adult who is ordinarily resident in the authority’s area and to any other adult who is within the authority’s area.
Section 21 makes similar requirements in respect of children.
Section 24 requires that where a carer may have needs for support the local authority must assess whether the carer does have such needs (or is likely to do so in the future), and if so, what those needs are (or are likely to be). This duty applies to any carer who is providing, or is likely to provide, care for an adult or disabled child who is ordinarily resident in the authority’s area, or for any other adult or disabled child who is within the authority’s area.
Determining which local authority has a duty to meet needs
Where the care and support needs of an adult meet the eligibility criteria (or the local authority considers it necessary to meet those needs in order to protect the adult from abuse or neglect or a risk of abuse or neglect), section 35 requires local authorities to meet those needs where the adult is ordinarily resident in the local authority’s area or is of no settled residence and within the authority’s area.
Where the support needs of an adult carer meet the eligibility criteria, section 40 requires local authorities to meet those needs where the person cared for by the carer is an adult who is ordinarily resident in the local authority’s area, or is of no settled residence within the authority’s area, or if the cared for person is a disabled child within the local authority’s area. Section 42 makes similar provision in relation to meeting the support needs of a child carer.
Ordinary residence is not a condition of the duty to meet the care and support needs of a child. Section 37 requires only that the child is within the local authority’s area and that their needs meet the eligibility criteria or the local authority considers it necessary to meet their needs in order to protect the child from abuse, neglect or other harm (or the risk of abuse, neglect or other harm).
Looked after children – recovering of costs from another local authority
Under section 76 of the 2014 Act a local authority is responsible for providing accommodation for any child within its area who meets the criteria in section 76(1). However, where a local authority provides accommodation under this section for a child who was (immediately before it began to look after the child) ordinarily resident within the area of another local authority, it may recover from that other local authority any reasonable expenses incurred by it in providing the accommodation and maintaining the child.
Section 194(6) provides that in determining the ordinary residence of a child, the child’s residence in the following places is to be disregarded:
- a school or other institution
- a place in which the child is placed in accordance with the requirements of a supervision order under the Children Act 1989 or in accordance with the requirements of a youth rehabilitation order under Part 1 of the Criminal Justice and Immigration Act 2008
- accommodation provided by or on behalf of a local authority in Wales (or a local authority in England).
This means that where a local authority is providing accommodation for a child under section 76 and is seeking to recover the costs of providing that accommodation from the local authority in whose area the child was ordinarily resident immediately before it began to look after the child, the question of where the child was ordinarily resident is to be determined without regard to their actual place of residence at that time, if this is one of the places listed in section 194(6).
Children subject to care orders – designated authority
For a looked after child who is the subject of a care order, the local authority responsible for providing accommodation for that child will be the authority designated by the court at the time the care order was made. This will be the authority within whose area the child is ordinarily resident or, where the child does not reside in the area of a local authority, the authority within whose area any circumstances arose which led to the order is being made (see section 31(8) of the Children Act 1989).
Section 105(6) of the Children Act 1989 will apply where there is any question of where a child was ordinarily resident for the purpose of deciding which authority is the designated local authority under section 31(8). Section 105(6) of the 1989 Act makes similar provision to that contained in section 194(6) of the 2014 Act, in that the child’s residence in specific places is disregarded when determining the child’s ordinary residence for this purpose.
“Deemed” ordinary residence - adults
Section 194(1) deals with ordinary residence for adults, if the local authority which is responsible for meeting their needs for care and support makes arrangements for the adult to live in accommodation of a particular type. If the adult moves to another area they will continue to be treated, for the purposes of the 2014 Act, as being ordinarily resident in the area of the local authority which made the arrangements (and not in the area to which they move).
Section 194(2) contains a power to make regulations on the types of accommodation to which this provision applies. The Care and Support (Ordinary Residence) (Specified Accommodation) (Wales) Regulations 2015 specify that section 194(1) will apply to care home accommodation. These provisions cover adults with care and support needs who are living in such accommodation in Wales.
Cross border placements
Where arrangements are made for the adult to be accommodated in England, Scotland or Northern Ireland, the provisions in Schedule 1 to the Care Act 2014 will apply. Guidance on cross border placements and the application of Schedule 1 is contained in Annex 2 of the Practice Guidance on cross border placements that has been prepared by the Social Care Institute for Excellence (SCIE)
Dispute resolution
The provisions in Part 11 of the 2014 Act on dispute resolution cover disputes between local authorities about ordinary residence, portability of care and support and provider failure under the Act. They also cover disputes about ordinary residence under section 117 of the Mental Health Act 1983.
Section 195 makes provision for determining disputes between local authorities about ordinary residence or between a sending and a receiving authority about the portability of care and support. Although this deals with local authorities in Wales only.
The Care and Support (Disputes about Ordinary Residence etc.) (Wales) Regulations 2015 specify the procedures which local authorities must follow in handling disputes about ordinary residence and portability of care and support. Section 189(8) (on provider failure) provides that any dispute about the application of section 189 is to be determined under section 195 as if it were a dispute of the type mentioned in section 195(1). The regulations therefore also apply to disputes about co-operation and about costs incurred under the temporary duty.
Section 117(4) of the Mental Health Act 1983 provides that where there is a dispute about where a person was ordinarily resident for the purpose of that section, and the dispute is between local social services authorities in Wales, section 195 of the 2014 Act applies to the dispute as it applies to a dispute about where a person was ordinarily resident for the purposes of the 2014 Act. If the dispute is between a local social services authority in England and a local social services authority in Wales, it is to be determined by the Secretary of State or the Welsh Ministers. The Secretary of State and the Welsh Ministers shall make and publish arrangements for determining which of them is to determine a dispute under section 117(4)(c).
Further guidance on how to determine the ordinary residence of a person is set out in the code of practice.