CARE ACT 2014

The Act introduced duties on the Care Quality Commission to assess financial sustainability of the most difficult to replace providers, and support local authorities to ensure continuity of care if providers fail. There is a general duty for the local authority to promote diversity and quality in the market of local care and support providers. It must ensure a range of providers available; shaped by demands of individuals, families and carers; services are of high quality and meet needs and preferences of those wanting to access services.

RELEVANT CHAPTER

Promoting Wellbeing

RELEVANT INFORMATION

Chapter 4, Market Shaping and Commissioning of Adult Care and Support, Care and Support Statutory Guidance (Department of Health and Social Care)

1. Introduction

High quality, personalised care and support can only be achieved where there is a vibrant, responsive market of service providers. The role of the local authority is critical to achieving this, both through the actions it takes to commission services directly to meet needs and the broader understanding of and interactions it undertakes with, the wider market, for the benefit of all local people and communities.

The Care Act 2014 places duties on local authorities to promote the efficient and effective operation of the market for adult care and support as a whole. This can be considered a duty to facilitate the market, in the sense of using a wide range of approaches to encourage and shape it, so that it meets the needs of all people in their area who need care and support, whether arranged or funded by the state, by the individual themselves, or in other ways. The ambition is for local authorities to influence and drive the pace of change for their whole market, leading to a sustainable and diverse range of care and support providers, continuously improving quality and choice, and delivering better, innovative and cost effective outcomes that promote the wellbeing of people who need care and support.

The market for care and support services is part of a wider system in which much of the need for care and support is met by people’s own efforts, by their families, friends or other carers, and by community networks. Local authorities have a vital role in ensuring that universal services are available to the whole population and where necessary, tailored to meet the needs of those with additional support requirements (for example housing and leisure services). Market shaping and commissioning should aim to promote a market for care and support that should be seen as broadening, supplementing and supporting all these vital sources of care and support.

Local authorities should review the way they commission services, as this is a prime way to achieve effective market shaping and directly affects services for those whose needs are met by the local authority, including where funded wholly or partly by the state.

At a time of increasing pressure on public funds, changing patterns of needs, and increasing aspirations of citizens, together with momentum for integrated services, joint commissioning, and choice for individuals, it is suggested that fundamental changes to the way care and support services are arranged may be needed, driven through a transformation of the way services are led, considered and arranged. Commissioning and market shaping are key levers for local authorities in designing and facilitating a healthy market of quality services.

2. Definitions

2.1 Market shaping

Market shaping means the local authority collaborating closely with other relevant partners, including people with care and support needs, carers and families, to facilitate the whole market in its area for care, support and related services.

This includes:

  • services arranged and paid for by the state through the authority itself;
  • those services paid by the state through direct payments;
  • those services arranged and paid for by individuals from whatever sources (self-funders);
  • services paid for by a combination of these sources.

Market shaping activity should stimulate a diverse range of appropriate high quality services (both in terms of the types, volumes and quality of services and the types of provider organisation), and ensure the market as a whole remains vibrant and sustainable.

The core activities of market shaping are to engage with stakeholders to develop understanding of supply and demand to understand likely trends that reflect people’s needs and aspirations. It should be based on evidence, to signal to the market the types of services needed now and in the future to meet them, encourage innovation, investment and continuous improvement.

It includes working to ensure that those who purchase their own services are empowered to be effective consumers, for example by helping people who want to take direct payments make informed decisions about employing personal assistants. A local authority’s own commissioning practices are likely to have a significant influence on the market to achieve the desired outcomes, but other interventions may be needed, for example, incentivising innovation by user-led or third sector providers, possibly through grant funding.

2.2 Commissioning

Commissioning is the local authority’s cyclical activity to assess the needs of its local population for care and support services, determining what element of this needs to be arranged by the authority, then designing, delivering, monitoring and evaluating those services to ensure appropriate outcomes. Commissioning has come to be shaped more by the outcomes commissioners and individuals identify, rather than volumes of activity expected and commissioners have sought to facilitate flexible arrangements with providers for other forms of service to support choice and control, such as Individual Service Funds (ISFs).

2.3 Procurement

Procurement is the specific functions carried out by the local authority to buy or acquire the services the local authority has a duty to arrange to meet people’s needs, to agreed standards to provide value for money to the public purse and deliver its commissioning strategy.

2.4 Contracting

Contracting is the means by which that process is made legally binding. Contract management is the process that ensures that the services continue to be delivered to the agreed quality standards. Commissioning encompasses procurement but includes the wider set of strategic activities.

Market shaping, commissioning, procurement and contracting are inter-related activities and the themes of the Care and Support Statutory Guidance apply to each to a greater or lesser extent depending on the specific activity.

3. Principles of Market Shaping and Commissioning

3.1 Focusing on outcomes

The local authority must ensure the promotion of the wellbeing of individuals who need care and support, and the wellbeing of carers. The outcomes they require, are central to all care and support functions in relation to individuals, emphasising the importance of enabling people to stay independent for as long as possible. See the chapters on Promoting Wellbeing and Preventing, Reducing and Delaying Needs.

The local authority will need to understand the outcomes which matter most to people in its area, and demonstrate that these outcomes are at the heart of its local strategies and approaches.

The local authority should consider the Measures from the Adult Social Care Outcomes Framework in addition to any locally collected information on outcomes and experiences, when framing outcomes for its locality and groups of people with care and support needs. The local authority should have regard to guidance from the Think Local Act Personal (TLAP) Partnership when framing outcomes for individuals, groups and their local population. In particular Making It Real which sets out what good personalised care and support should look like from the perspective of people with care and support needs, carers and family members.

Outcomes should be considered both in terms of outcomes for individuals and outcomes for groups of people and populations. Local authorities should consider the Care Quality Commission standards for quality and any emerging national frameworks for defining outcomes.

Local authorities should consider analysing and presenting local needs for services in terms of outcomes required. Local authorities should ensure that achieving better outcomes is central to its commissioning strategy and practices, and should be able to demonstrate that they are moving to contracting in a way that has an outcome basis at its heart. Local authorities should consider emerging best practice on outcomes based commissioning.

Outcomes based services are service arrangements that are defined on the basis of an agreed set of outcomes; either for an individual or a group of people. Moving more to an outcomes-based approach therefore means changing the way services are bought: from units of provision to meet a specified need (for example, hours of care provided) to what is required to ensure specified measurable outcomes for people are met.

The approach should emphasise:

  • prevention;
  • enablement;
  • ways of reducing loneliness and social isolation;
  • promotion of independence as ways of achieving and exceeding desired outcomes;
  • choice in how people’s needs are met.

Moving to an outcomes based approach will need to recognise that some outcomes are challenging to assess and local authorities may wish to consider involving service providers when considering how service evaluations can be interpreted.

In encouraging outcomes based services, consideration should be given to how services are paid for. The local authority should consider incorporating elements of ‘payments by outcomes’ mechanisms, where practical, to emphasise and embed this commissioning approach which is based on specifying the outcomes to be achieved, rather than the service outputs to be delivered. Whilst payments by outcomes may be theoretically the most appropriate approach for outcomes based services, it is recognised that proxies for outcomes may be required to make the approach practical. For example, an outcome an authority may wish to measure might be someone’s personal outcome ‘I want to maintain a nutritious and balanced diet’, but a proxy measure that is observable, attributable and capable of being described, may be the person receiving help with meal preparation at agreed and specified times. Care logs documenting punctual assistance in meal preparation, in conjunction with positive feedback from the person receiving care about support received might be used as part of the basis of payment.  It is also recognised that whilst these mechanisms are more commonplace in other types of commissioning, they are in their infancy for adult social care.

The design of any mechanism should, however, be introduced in cooperation with stakeholders and partners to ensure it is sustainable and ensure that innovation, and individual choice and control are not undermined. Any move to payments by outcomes should be achieved such that smaller, specialist, voluntary sector and community-based providers are not excluded from markets or disadvantaged, because for example, they do not have appropriate IT systems.

Local authorities should have regard to the evolving guidance Commissioning for Better Outcomes that was co-produced by the Department of Health, ADASS,LGA together with provider representatives and people with lived experience of care and support. This guidance is intended to support peer review and self-assessment of local authority commissioning, and represents a practical approach that underpins the themes of the Care and Support Statutory Guidance (2016).

The Care Act outlines local authorities’ role in preventing, reducing or delaying the need for care and support. This includes how the authority facilitates and commissions services and how it works with other local organisations to build community capital and make the most of the skills and resources already available in the area. Local authorities should consider working not just with traditional public sector partners like health, but also with a range of other partners to engage with communities to understand how to prevent problems from arising.

3.2 Promoting quality

The local authority must facilitate markets that offer a diverse range of high quality and appropriate services. In doing so, they must have regard to ensuring the continuous improvement of those services and encouraging a workforce which effectively underpins the market through:

The quality of services provided and the workforce providing them can have a significant effect on the wellbeing of people receiving care and support, and that of carers, and it is important to establish agreed understandable and clear criteria for quality and to ensure they are met (see also Promoting Wellbeing chapter).

When considering the quality of services, the local authority should be mindful of:

  • capacity;
  • capability;
  • timeliness;
  • continuity;
  • reliability;
  • flexibility;
  • wellbeing,

Where appropriate, using the definitions that underpin the CQC’s Fundamental Standards of Care as a minimum, and having regard to the ASCOF framework of population outcomes.

High quality services should enable people who need care and support, and carers, to meet appropriate personal outcome measures, for example, a domiciliary care service which provides care two days a week so that a carer who normally provides care can go to work, is not a quality service if it is not available on the specified days, or the care workers do not arrive in time to allow the carer to get to work on time.

Local authorities should also consider other relevant national standards including those that are aspirational, for example, any developed by the National Institute of Health and Care Excellence (NICE).

It should encourage a wide range of service provision to ensure that people have a choice of appropriate services; appropriateness is a fundamental part of quality. Appropriate services will meet people’s needs and reasonable preferences.

When arranging services itself, the local authority must ensure its commissioning practices and the services delivered on its behalf comply with the requirements of the Equality Act 2010, and do not discriminate against people with protected characteristics; this should include monitoring delivery against the requirements of that Act. When shaping markets for services, it should work to ensure compliance with this Act for services provided in their area that it does not arrange or pay for. Local authorities should consider care and support services for their appropriateness for people from different communities, cultures and beliefs.

The local authority should encourage services that respond to the fluctuations and changes in people’s care and support needs, for example someone with fluctuating mobility or visual impairment. It should support the transition of services throughout the stages of people with care and support needs’ lives to ensure the services provided remain appropriate. This is particularly important, for example, for young people with care and support needs and young carers transitioning to adulthood (see Transition to Adult Care and Support chapter.

The local authority should commission services having regard to the cost-effectiveness and value for money that the services offer for public funds. See the Local Government Association Adult Social Care Efficiency Programme.

People working in the care sector play a central role in providing high quality services. The local authority must consider how to help foster, enhance and appropriately incentivise this vital workforce to underpin effective, high quality services. In particular, it should consider how to encourage training and development for the workforce, including for the management of care services, though, for example, national standards recommended by Skills for Care:

and have regard to funding available through grants to support the training of care workers in the independent sector.

The local authority should consider encouraging the training and development of care worker staff to at least the standard of the Care Certificate being developed by Skills for Care and Skills for Health.

When commissioning services, the local authority should assure itself and have evidence that service providers employ staff who are remunerated to a level that enables them to retain an effective workforce. Remuneration must be at least sufficient to comply with the national minimum wage legislation for hourly pay or equivalent salary. This will include appropriate remuneration for any time spent travelling between appointments. Guidance on these issues can be found at the HMRC website.

When commissioning services, the local authority should assure itself and have evidence that contract terms, conditions and fee levels for care and support services are appropriate to provide the delivery of the agreed care packages with agreed quality of care. This should support and promote the wellbeing of people who receive care and support, and allow for the service provider ability to meet statutory obligations to pay at least the national minimum wage and provide effective training and development of staff and enable retention of staff. It should also allow retention of staff commensurate with delivering services to the agreed quality, and encourage innovation and improvement. Local authorities should have regard to guidance on minimum fee levels necessary to provide this assurance, taking account of the local economic environment. This assurance should understand that reasonable fee levels allow for a reasonable rate of return by independent providers that is sufficient to allow the overall pool of efficient providers to remain sustainable in the long term. The following tools may be helpful as examples of possible approaches:

The local authority should also ensure that it has functions and systems in place to fulfil its duties on market shaping and commissioning itself that are fit for purpose, with sufficient capacity and capability of trained and qualified staff to meet the requirements set out in the Care Act 2014 and the Care and Support Statutory Guidance.

3.3 Supporting sustainability

The local authority must work to develop markets for care and support that – whilst recognising that individual providers may exit the market from time to time – ensure the overall provision of services remains healthy in terms of the sufficiency of adequate provision of high quality care and support needed to meet expected needs. This will ensure there are a range of appropriate and high quality providers and services from which people can choose.

The local authority should understand the business environment of providers offering services in its area and seek to work with those facing challenges and understand their risks. Where needed, based on expected trends, the local authority should consider encouraging service providers to adjust the extent and types of service provision. This could include signalling to the market as a whole the possible need to extend or expand services, encourage new entrants to the market in the area, or if appropriate, signal likely decrease in needs – for example, drawing attention to a possible reduction in home care needs, and changes in demand resulting from increasing uptake of direct payments. The process of developing and articulating a Market Position Statement or equivalent should be central to this process.

The local authority should consider the impact of its own activities on the market as a whole, in particular the potential impact of its commissioning and re-commissioning decisions, how services are packaged or combined for tendering, and where they may also be a supplier of care and support. The local authority may be the most significant purchaser of care and support in an area, and therefore its approach to commissioning will have an impact beyond those services which it contracts. It must not undertake any actions which may threaten the sustainability of the local market as a whole, for example, by setting fee levels below an amount which is not sustainable for providers in the long term.

The local authority should have effective communications and relationships with providers in its area that should minimise risks of unexpected closures and failures. It should have effective interaction and communication with the Care Quality Commission (CQC) about the larger and most difficult to replace providers for which the CQC will provide financial oversight. It should review the intelligence it has about the sustainability of care providers drawn from market shaping, commissioning and contract management activities.

Where the authority believes there is a significant risk to a provider’s financial viability, and where they consider it would be in the best interests of service users, the authority should consider what assistance may be provided or brokered to help the provider return to viability, and consider what actions might be needed were that provider to fail. For example, where a local authority has arranged services for people with a provider that appears to be at risk, it should undertake early planning to identify potential replacement service capacity. Where it is apparent to a local authority that a provider is likely to imminently fail financially, either through its own intelligence or through information from the CQC, the authority should prepare to step in to ensure continuity of care and support for people who have their care and support provided by that provider.

3.4 Ensuring choice

The local authority must encourage a variety of different providers and different types of services. This is important in order to facilitate an effective open market, driving quality and cost-effectiveness so as to provide genuine choice to meet the range of needs and reasonable preferences of local people who need care and support services, including for people who choose to take direct payments, recognising, for example, the challenges presented in remote rural areas for low volume local services.

It must encourage a range of different types of service provider organisations to ensure people have a genuine choice of different types of service. This will include independent private providers, third sector, voluntary and community based organisations, including user-led organisations, mutual and small businesses. Local authorities should note that the involvement of people with specific lived experience of the type of needs being met, may lead to better outcomes for people who use services and carers as they directly empathise with service users. This should recognise that the different underpinning philosophies, cultural sensitivity and style of service of these organisations may be more suited to some people with care and support needs. The local authority should consider encouraging and supporting providers or taking other steps to promote an appropriate balance of provision between types of provider, having regard to competition rules and the need for fairness and legal requirements for all potential providers who may wish to compete for contracts.

When commissioning services to meet people’s eligible needs, where a local authority develops approved lists and frameworks that are used to limit the number of providers they work with, for example within a specific geographical area or for a particular service type to achieve strategic partnerships and value for money, the local authority must consider how to ensure that there is still a reasonable choice for people who need care and support.

It should encourage a genuine choice of service type, not only a selection of providers offering similar services, encouraging, for example, a variety of different living options such as shared lives, extra care housing, supported living, support provided at home, and live-in domiciliary care as alternatives to homes care, and low volume and specialist services for people with less common needs.

Choice for people who need care and support and carers should be interpreted widely. The local authority should encourage choice over the way services are delivered, for example:

  • developing arrangements so that care can be shared between an unpaid carer or relative and a paid care worker;
  • choice over when a service is delivered;
  • choice over who is a person’s key care worker;
  • arranging for providers to collaborate to ensure the right provision is available, for example, a private provider and a voluntary organisation working together;
  • choice over when a service is delivered.

The local authority must have regard to ensuring a sufficiency of provision – in terms of both capacity and capability – to meet anticipated needs for all people in its area needing care and support – regardless of how they are funded. This will include regularly reviewing trends in needs including multiple and complex needs, outcomes sought and achieved, and trends in supply, anticipating the effects and trends in prevention and community-based assets, and through understanding and encouraging changes in the supply of services and providers’ business and investment decisions.

When considering the sufficiency and diversity of service provision, it should consider all types of service that are required to provide care and support for the local authority’s whole population, including for example:

  • support services and universal and community services that promote prevention;
  • domiciliary (home) care;
  • homes and other types of accommodation care;
  • nursing care;
  • live-in care services;
  • specialist care;
  • support for carers;
  • reablement services;
  • sheltered accommodation and supported living;
  • shared lives services;
  • other housing options;
  • community support;
  • counselling;
  • social work;
  • information, brokerage, advocacy and advice services;
  • direct payment support organisations.

This will include keeping up to date with innovations and developments in services, networking through for example, the Association of Directors of Adult Social Services (ADASS), Think Local Act Personal (TLAP) and the Local Government Association (LGA).

The local authority should facilitate the personalisation of care and support services, encouraging services (including small, local, specialised and personal assistant services that are highly tailored), to enable people to make meaningful choices and to take control of their support arrangements, regardless of service setting or how their personal budget is managed. Local authorities should have regard to the TLAP Partnership agreement that sets out how shaping markets to meet people’s needs and aspirations, including housing options, can promote choice and control. Alongside the suitability of living accommodation, the local authority should consider how it can encourage the development of accommodation options that can support choice and control and promote wellbeing. Personalised care and support services should be flexible so as to ensure people have choices over what they are supported with, when and how their support is provided and wherever possible, by whom. The mechanism of Individual Service Funds by service providers, which are applicable in many different service types, can help to secure these kinds of flexibilities for people and providers.

The local authority should help people who fund their own services or receive direct payments, to ‘micro-commission’ care and support services and / or to pool their budgets, and should ensure a supporting infrastructure is available to help with these activities. Many local authorities, for example, are utilising web based systems such as e-Marketplaces for people who are funding their own care or are receiving direct payments to be able to search for, consider and buy care and support services online, or consider joint purchases with others. This often involves offering information and advice about, for example, the costs and quality of services and information to support safeguarding (see also Information and Advice chapter). This should include facilitating organisations that support people with direct payments and those whose care is funded independently from the local authority to become more informed and effective consumers and to overcome potential barriers such as help to recruit and employ personal assistants and to assist in overcoming problems and issues. This activity should help to match people’s wider needs with services.

Local authorities must facilitate information and advice to support people’s choices for care and support. This should include where appropriate through services to help people with care and support needs understand and access the systems and processes involved and to make effective choices. This is a key aspect of the duty to establish and maintain a universal information and advice service locally. Information and advice services should be reviewed for effectiveness using people’s experiences and feedback. This feedback forms part of the overall information a local authority considers about people’s needs and aspirations.

The local authority should facilitate local markets to encourage a sufficiency of preventative, enablement and support services, including support for carers to make caring more sustainable, such as interpreters, signers and communicator guides, and other support services such as telecare, home maintenance and gardening that may assist people achieve more independence and supports the outcomes they want.

The local authority should encourage flexible services to be developed and made available that support people who need care and support, and carers who need support, to take part in work, education or training. Services should be encouraged that allow carers who live in one local authority area but care for someone in another local authority area to access services easily, bearing in mind guidance on ordinary residence.

3.5 Co-production with stakeholders

Local authorities should pursue the principle that market shaping and commissioning should be shared endeavours, with commissioners working alongside people with care and support needs, carers, family members, care providers, representatives of care workers, relevant voluntary, user and other support organisations and the public to find shared and agreed solutions (see also the TLAP guidance on co-production).

3.6 Developing local strategies

Commissioning and market shaping should be fundamental means for local authorities to facilitate effective services in their area and it is important that authorities develop evidence-based local strategies for how they exercise these functions, and align these with wider corporate planning.  It should publish strategies that include plans that show how its legislative duties, corporate plans, analysis of local needs and requirements (integrated with the Joint Strategic Needs Assessment and Joint Local Health and Wellbeing Strategy), thorough engagement with people, carers and families, market and supply analysis, market structuring and interventions, resource allocations and procurement and contract management activities translate (now and in future) into appropriate high quality services that deliver identified outcomes for the people in their area and address any identified gaps.

Market shaping and commissioning intentions should be cross-referenced to the JSNA, and should be informed by an understanding of the needs and aspirations of the population and how services will adapt to meet them. Strategies should be informed and emphasise preventative services that encourage independence and wellbeing, delaying or preventing the need for acute interventions (see also Joint Strategic Needs Assessments and Joint Local Health and Wellbeing Strategies chapter).

Market shaping and commissioning should become an integral part of understanding and delivering the whole health and care economy, and reflect the range and diversity of communities and people with specific needs, in particular:

  • people needing care and support themselves (through for example, consumer research);
  • carers;
  • carer support organisations;
  • health professionals;
  • care and support managers and social workers (and representative organisations for these groups);
  • relevant voluntary, user and other support organisations;
  • independent advocates;
  • wider citizens;
  • provider organisations (including where appropriate housing providers); and
  • other tiers of local government.

A co-produced approach will stress the value of meaningful engagement with people at all stages, through design, delivery and evaluation, rather than simply as ‘feedback’. The local authority should publish and make available its local strategies for market shaping and commissioning, giving an indication of timescales, milestones and frequency of activities, to support local accountability and engagement with the provider market and the public.

The local authority can best start implementing its statutory responsibilities in relation to market shaping and commissioning and provider failure by developing with providers and stakeholders a published Market Position Statement. It may be helpful for Market Position Statements from neighbouring local authority areas to be coordinated to ensure a degree of consistency for people who will use the documents; this is particularly true for urban areas.

The local authority should review strategies related to care and support together with stakeholders to ensure they remain fit for purpose, learn lessons, and adapt to incorporate emerging best practice, noting that peer review has a strong track record in driving improvement. It is suggested that reporting against strategies for care and support should form part of the local authority’s Local Account.

Many public sector bodies, including local authorities, have radically transformed services by reconsidering commissioning in a strategic context. The Government’s Commissioning Academy is working to promote such transformational approaches and local authorities should have regard to the emerging best practice it is producing.

Developing a diverse market in care and support services can boost employment and create opportunities for local economic growth, through for example, increasing employment opportunities for working age people receiving care and carers, and developing the capacity of the care workforce. Local authorities should consider how their strategies related to care and support can be embedded in wider local growth strategies, for example, engaging care providers in local enterprise partnerships.

The local authority should have regard to best practice on efficiency and value for money.

The local authority strategies should adhere to general standards, relevant laws and guidance, including the Committee on Standards in Public Life principles of accountability, regularity and ensuring value for money alongside quality, and the HM Treasury guidance on Managing Public Money.

The local authority should develop standards on transparency and accountability to ensure citizens are able to contribute to and understand policy and review delivery. Standards should be in line with the codes of practice drawn up by the Department for Levelling Up, Housing and Communities

Local authorities should take the lead to engage with a wide range of stakeholders and citizens in order to develop effective approaches to care and support, including through developing the JSNA and a Market Position Statement. While the duties under the Care Act fall upon local authorities, successful market shaping is a shared endeavour that requires a range of coordinated action by commissioners and providers, working together with the citizen at the centre.  Local authorities should engage and cooperate with stakeholders to reflect the range and diversity of communities and people with specific needs, for example:

  • people needing care and support themselves and their representative organisations;
  • carers and their representative organisations;
  • health professionals;
  • social care managers and social workers;
  • independent advocates;
  • support organisations that help people who need care consider choices (including financial options);
  • provider organisations (including where appropriate housing providers and registered social landlords);
  • wider citizens and communities including individuals and groups who are less frequently heard (for example, LGBT communities where there may be a lack of data on care and support needs and preferences) or at risk from exclusion, including those who have communication issues and involving representatives of those who lack mental capacity.

Engagement with people needing care and support, people likely to need care and support, carers, independent advocates, families and friends, should emphasise understanding the needs of individuals and specific communities, what aspirations people have, what outcomes they would like to achieve, their views on existing services and how they would like services to be delivered in the future. It should also seek to identify the types of support and resources or facilities available in the local community which may be relevant for meeting care and support needs, to help understand and build community capacity to reinforce the more formal, regulated provider market. In determining an approach to engagement, local authorities should consider methods that enable people to contribute meaningfully to:

  • setting the strategic direction for market shaping and commissioning;
  • engaging in planning – using methods that support people to identify problems and solutions, rather than relying on ‘downstream’ consultation;
  • identifying outcomes and set priorities for specific services;
  • setting measures of success and monitor ongoing service delivery, including through the experience of people who use services and carers;
  • playing a leading role throughout tendering and procurement processes, from developing specifications to evaluating bids and selecting preferred providers;
  • contributing to reviews of services and strategies that relate to decommissioning decisions and areas for new investment;
  • managing any changes to service delivery, recognising that long-term relationships may have developed in the community and with individual people receiving care and support and carers.

Engagement with service providers should emphasise understanding the organisation’s strategies, risks, plans, and encourage building trusting relationships and fostering improvement and innovation to better meet the needs of people in the area. The local authority should consider engagement with significant suppliers of services to provider organisations, where this would help improve its understanding of markets, for example, engaging with employment and training services that might enable local authorities to gain access to frontline insights on care provision and the local workforce supply and training.

The local authority should ensure that active engagement and consultation with local people is built into the development and review of their strategies for market shaping and commissioning, and is demonstrated to support local accountability (for example, via the Local Account).

The local authority should make available to providers available routes to register concerns or complaints about engagement and commissioning activities. Local authorities should consider the adequacy and effectiveness of these routes and processes as part of their engagement and trust building activities.

4. Undertaking Market Shaping and Commissioning

4.1 Understanding the market

The local authority must understand local markets and develop knowledge of current and future needs for care and support services, and, insofar as they are willing to share and discuss, understand providers’ business models and plans. This is important so that the authority can articulate likely trends in needs and signal to the market the likely future demand for different types of services for its market as a whole, and understand the local business environment, to support effective commissioning. Activities to understand the market should appropriately reflect an authority’s strategic plans for integrating health, social care and related services and will require the cooperation of those other parties, as well as other authorities in the region, to ensure a complete picture.

The local authority (through an engagement process, in concert with commissioners for other services where appropriate) should understand and articulate the characteristics of current and future needs for services. This should include reference to underpinning demographics, drivers and trends, the aspirations, priorities and preferences of those who will need care and support, their families and carers, and the changing care and support needs of people as they progress through their lives. This should include an understanding of:

  • people with existing care needs drawn from assessment records;
  • carers with existing care needs drawn from carers’ assessment records;
  • new care and support needs;
  • those whose care and support needs will transition from young people’s services to adult services;
  • those transitioning from working-age adults to services for older people;
  • people whose care and support needs may fluctuate;
  • people moving to higher needs and specialised care and support; and
  • those that will no longer need care and support.

It should include information and analysis of low incidence needs and multiple and complex conditions, as well as more common conditions such as sensory loss. It should also include information about likely changes in requirements for specialist housing required by people with care and support needs. See also the online tool shop@, Housing Learning and Improvement Network.

The local authority should have in place robust methods to collect, analyse and extrapolate this information about care and support needs, including as appropriate information about specific conditions (for example, neurological conditions such as Stroke, Parkinson’s, Motor Neurone Disease), and multiple and complex needs. This should sit alongside information about providers’ intentions to deliver support over an appropriate timescale – likely to be at least five years hence, with alignment to other strategic time frames. Data collection should include information on the quality of services provided in order to support local authority duties to foster continuous improvement. This could be achieved, for example, by collecting and acting on feedback from people who receive care, their families and carers alongside information on the specific nature of the services people receive (e.g. regularity and length of homecare visits). This will allow for an assessment of correlation between customer experience and service provision. Data collection must be sufficient to allow local authorities to meet their duties under the Equality Act 2010.

The local authority should include in its engagement and analysis services and support provided by voluntary, community services, supported housing providers, and other groups that make up ‘community assets’ and plan strategically to encourage, make best use of and grow these essential activities to integrate them with formal care and support services.

The local authority should also seek to understand trends and changes to the levels of support that are provided by carers, and seek to develop support to meet its needs, noting that amongst other sources, census data include information on carers and their economic activity. It should understand the trends and likely changes to the needs of carers in employment, so as to better plan future support.

In order to understand future trends in needs and demands, the local authority should include an understanding of people who are or are likely to be both wholly or partly state funded, and people who are or are likely to be self-funding. It should also include an analysis of those self-funders who are likely to move to state funding in the future.

The understanding of needs should also include an understanding of the likely demand for state funded services that the local authority will need to commission directly, and state funded services likely to be provided through direct payments and require individuals to ‘micro-commission’ services. The local authority should also consider the extent to which people receiving services funded by the state may wish to ‘top up’ their provision to receive extra services or premium services; that is, the assessment of likely demand should be for services that people are likely to need and be prepared to pay for through top ups.

The assessment of needs should be integrated with the process of developing, refining and articulating a local authority’s Joint Strategic Needs Assessment. Where appropriate, needs should be articulated on an outcomes basis.

In order to gather the necessary information to shape its market, the local authority should engage with providers (including the local authority itself if it directly provides services) to seek to understand and model current and future levels of service provision supply, the potential for change in supply, and opportunities for change in the types of services provided and innovation possible to deliver better quality services and greater value for money. It should understand the characteristics of providers’ businesses, their business models, market concentration, investment plans etc. Information about both supply and expected demand for services should be made available publicly to help facilitate the market and empower communities and citizens when considering care and support. Smaller care providers should be included in engagement. Local authorities may find helpful the guidance Market Shaping Tool: Supporting Local Authority and SME Care Provider Innovation and Collaboration that was co-produced by the Department of Health with ADASS and LGA, provider organisations and people with lived experience.

Assessment of supply and potential demand should include an awareness and understanding of current and future service provision and potential demand from outside the local authority area where this is appropriate, for example in considering services to meet highly specialised and complex needs, care and support may not be available in the local authority area, but only from a small number of specialised providers in the country. Consideration should be given to whether such services might better be commissioned and facilitated regionally.

4.2 Facilitating the development of the market

The local authority should collaborate with stakeholders and providers to bring together information about needs and demands for care and support with that about future supply, to understand for their whole market the implications for service delivery. This will include understanding and signalling to the market as a whole the need for the market to change to meet expected trends in needs, adapt to enhance diversity, choice, stability and sustainability, and consider geographic challenges for particular areas. To this picture, the local authority should add their own commissioning strategy and future likely resourcing for people receiving state funding. The local authority should consider coordinating these market shaping and related activities with other neighbouring authorities where this would provide better outcomes.

The local authority should consider how to support and empower effective purchasing decisions by people who self-fund care or purchase services through direct payments, recognising that this can help deliver a more effective and responsive local market.

It should ensure that the market has sufficient signals, intelligence and understanding to react effectively and meet demand, a process often referred to as market structuring or signalling. The local authority should publish, be transparent and engage with providers and stakeholders about the needs and supply analysis to assist this signalling. It is suggested that this is best achieved through the production and regular updating of a document like a Market Position Statement that clearly provides evidence and analysis and states the local authority’s intent. A Market Position Statement is intended to encourage a continuing dialogue between a local authority, stakeholders and providers, where that dialogue results in an enhanced understanding by all parties is an important element of signalling to the market.

A Market Position Statement should contain information on: the local authority’s direction of travel and policy intent, key information and statistics on needs, demand and trends, (including for specialised services, personalisation, integration, housing, community services, information services and advocacy, and carers’ services), information from consumer research and other sources about people’s needs and wants, information to put the authority’s needs in a national context, an indication of current and future authority resourcing and financial forecasts, a summary of supply and demand, the authority’s ambitions for quality improvements and new types of services and innovations, and details or cross-references to the local authority’s own commissioning intentions, strategies and practices.

Developing and publishing a Market Position Statement is one way a local authority can meet its duties to make available information about the local market, and demonstrate activity to meet other parts of the Care Act 2014. Market Position Statements for care and support services should combine, cross refer or otherwise complement other similar statements for related services, particularly where there is an integrated approach or ambition, for example, housing.

As part of developing and publishing a document like a Market Position Statement, the local authority should engage with stakeholders and partners to structure their markets. This could include:

  • discussions with potential providers;
  • actively promoting best practice and models of care and support;
  • understanding the business planning cycles of providers;
  • aligning interactions and supporting the provider’s business planning;
  • identifying and addressing barriers to market entry for new providers;
  • facilitating entry to the market through advice and information;
  • streamlining the authority’s own procurement processes;
  • promoting diversification of provider organisations;
  • working with providers on an ‘open-book accounting’ approach to cost current and future services and ensure provider sustainability;
  • supporting providers through wider local authority activity – planning, business support and regeneration.

The local authority may consider that market structuring activity – signalling to the market and providing assistance – is not achieving the strategic aims as quickly or as effectively as needed, and may wish to consider more direct interventions in the market. Market interventions may also be planned as part of the market shaping and commissioning strategies where there is an immediate need for intervention.

Market interventions could for example include: refocusing local authority business support initiatives onto the care and support sector, exploring how local care and support projects could attract capital investments and support and what guarantees may be needed, encouraging and supporting social enterprises, micro-enterprises, Community Interest Companies, and User Led Organisations (for example, incentivising innovation by third sector providers, possibly through grant funding), exploring planning barriers and using planning law, offering access to training and development opportunities.

The local authority should consider monitoring progress toward the ambitions set out in the Market Position Statement, and making the progress public along with information about its own commissioning decisions, as part of a commitment to transparency and accountability. This would demonstrate that the authority’s commissioning activity is in line with the ambition and direction of travel articulated in its Market Position Statement, and might be achieved by including this information in regular updates to the Market Position Statement.

4.3 Promoting integration with local partners

The Health and Social Care Act 2012 sets out specific obligations for the health system and its relationship with care and support services. It gives a duty to NHS England, Integrated Care Boards and Health and Wellbeing Boards to make it easier for health and social care services to work together to improve outcomes for people. The local authority has a corresponding duty to carry out their care and support functions with the aim of integrating services with those provided by the NHS or other health-related services, such as housing.

It should also consider working with appropriate partners to develop integration with services related to care and support such as housing, employment services, transport, benefits and leisure services. Local authorities should prioritise integration activity in areas where there is evidence that effective integration of services materially improves people’s wellbeing, for example, end of life care, and should take account of the key national and local priorities and objectives of the Better Care Fund, for example, stopping people reaching crisis and reducing the emergency admissions to hospitals.

Integrated services built around an individual’s needs are often best delivered in the home. The suitability of living accommodation is a core component of an individual’s wellbeing and when developing integrated services, the local authority should consider the central role of housing within integration, with associated formal arrangements with housing and other partner organisations.

The local authority should work towards providing integrated care and support, providing services that work together to provide better outcomes for individuals who need care and support and enhancing their wellbeing, noting that this will require the sharing of information about current and future needs and likely service provider’s responses to underpin a holistic approach to developing integrated care and support pathways. See also Integration, Cooperation and Partnerships chapter.

The local authority should consider with partners the enabling activities, functions and processes that may facilitate effective integrated services. These will include consideration of: joint commissioning strategies, joint funding, pooled budgets, lead commissioning, collaborative commissioning, working with potential service providers to consider innovative ways of arranging and delivering services, and making connections to public health improvement.

4.4 Securing supply in the market and assuring its quality and value for money through contracting

Local authorities should consider best practice on commissioning services, for example the National Audit Office guidance Value for Money to ensure they deliver quality services with value for money. This means optimal use of resources to achieve intended outcomes, and must reference the quality of service delivered and the outcomes achieved for people’s wellbeing, and should not be solely based on achieving the lowest cost. Achieving value for money may mean arranging service provision collaboratively with other authorities, in order to secure viable, quality services that meet the demands identified, for example, low volume services.

Commissioning and procurement practices must deliver services that meet the requirements of the Care Act and all related statutory guidance. Re-commissioning and replacing services represents a particular challenge and should be carried out so as to maintain quality and service delivery that supports the wellbeing of people who need care and support and carers, and guards against the risk of a discontinuity of care and support for those receiving services. For example, multiple contracts terminating around the same time may destabilise local markets if established providers lose significant business rapidly and staff do not transfer smoothly to new providers.

Decommissioning services where there is to be no replacement service should similarly be carried out so as to maintain the wellbeing of people who need care and support, and carers, and ensures that their eligible needs continue to be met.

The local authority should consider the contract arrangements they make with providers to deliver services, including the range of block contracts, framework agreements, spot contracting or ‘any qualified provider’ approaches, to ensure that the approaches chosen do not have negative impacts on the sustainability, sufficiency, quality, diversity and value for money of the market as a whole – the pool of providers able to deliver services of appropriate quality.

A local authority’s own commissioning should be delivered through a professional and effective procurement, tendering and contract management, monitoring, evaluation and decommissioning process that must be focused on providing appropriate high quality services to individuals to support their wellbeing and supporting the strategies for market shaping and commissioning, including all the themes set out in this guidance.

The local authority should ensure that it understands relevant procurement legislation, and that its procurement arrangements are consistent with such legislation and best practice. It should be aware there is significant flexibility in procurement practices to support effective engagement with provider organisations and support innovation in service delivery, potentially reducing risks and leading to cost-savings. The Government has produced guidance on when reserved contracts may be allowable for organisations employing a significant number of disabled people.

4.5 Front line social work practice

The local authority should ensure that its procurement and contract management and monitoring systems provide direct and effective links to care service managers and social workers to ensure the outcomes of service delivery matches the individual’s care and support needs, and that where the local authority arranges services, people are given a reasonable choice of provider. Contract management should take account of feedback from people receiving care and support.

The local authority should ensure that where they arrange services, the assessed needs of a person with eligible care and support needs is translated into effective, appropriate commissioned services that are adequately resourced and meet the wellbeing principle (see Promoting Wellbeing chapter). For example, short home-care visits of 15 minutes or less are not appropriate for people who need support with intimate care needs, though such visits may be appropriate for checking someone has returned home safely from visiting a day centre, or whether medication has been taken (but not the administration of medicine) or where they are requested as a matter of personal choice.

4.6 Preventing abuse and neglect

When commissioning services, the local authority should pay particular attention to ensuring that providers have clear arrangements in place to prevent abuse or neglect. This should include assuring itself, through its contracting arrangements, that a provider is capable and competent in responding to allegations of abuse or neglect, including having robust processes in place to investigate the actions of members of staff. The local authority should be clear what information they expect from providers (for example, where there are allegations of abuse, what action the provider is taking or has taken and what the outcome is) and where providers are expected to call upon local authorities to lead a section 42 enquiry (where the management of the provider is implicated for instance), or to involve the Integrated Care Board (for health matters) or police (for example, in the case of potential crimes). There should be clear agreement about how local partners work together on investigations and their respective roles and responsibilities.

4.7 Financial sustainability

When commissioning services, the local authority should undertake due diligence about the financial sustainability and effectiveness of potential providers to deliver services to agreed criteria for quality, and should assure themselves that any recent breaches of regulatory standards or relevant legislation by a potential provider have been corrected before considering them during tendering processes. For example, where a provider has previously been in breach of national minimum wage legislation, a local authority should consider every legal means of excluding them from the tendering process unless they have evidence that the provider’s policies and practice have changed to ensure permanent compliance.

Contracts should incentivise value for money, sustainability, innovation and continuous improvement in quality and actively reward improvement and added social value. Contracts and contract management should manage and eliminate poor performance and quality by providers and recognise and reward excellence.

The local authority has a duty to consider added social value when letting contracts through the Public Services (Social Value) Act 2012, and are required to consider how the services it procures, above relevant financial thresholds, might improve the economic, social and environmental wellbeing of the area. The local authority should consider using this duty to promote added value in care and support both when letting contracts to deliver care and support, and for wider goods and services. This should include considering whether integrated services, voluntary and community services and ‘community capital’ could be enhanced, recognising that these community assets provide the bedrock of care and support that commissioned and bought services supplement. Local authorities should consider the range of funding mechanisms that are available to support market interventions to support community based organisations such as seed funding and grants.

All services delivered should adhere to national quality standards, with procedures in place to assure quality, safeguarding, consider complaints and commendations, and continuing value for money, referencing the Care Quality Commission (CQC) standards for quality and its quality ratings.

The local authority may consider delegating some forms of contracting to brokers and people who use care and support to support personal choice for people who are not funded by the local authority and those taking direct payments, with appropriate systems in place to underpin the delivery of safe, effective appropriate high quality services through such routes. Where functions and activities are delegated, local authorities should ensure that appropriate elements of this statutory guidance are included in contractual conditions, for example, allowing engagement in developing Market Position Statements. Local authorities should also consider providing support to people who wish to use direct payments to help them make effective decisions through, for example, direct payment support organisations.

Local authority procurement and contract management activities should seek to minimise burdens on provider organisations and reduce duplications, where appropriate, using and sharing information, with for example the CQC.

Recognising that procurement is taking place against a backdrop of significant demand on commissioners to achieve improved value for money and make efficiencies, local authorities should consider emerging practice on achieving efficiencies without undermining the quality of care.

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This chapter provides information for multi-agency practitioners in relation to how local agencies must work together, with the aim of preventing, delaying or reducing needs and promoting the wellbeing of adults with care and support needs.

RELATED SECTIONS AND CHAPTERS

Safeguarding Enquiries Process

Out of Area Arrangements

South Tyneside Multi Agency Information Sharing Agreement

Safeguarding Children

1. Introduction

Under the Care Act 2014, the local authority has a duty to carry out their care and support responsibilities – including carer’s support and prevention services – with the aim of joining up services with those provided by the NHS and other health related services, for example, housing or leisure services.

The duty applies where the local authority considers that integration of services would promote the wellbeing of adults with care and support needs – including carers, contribute to the prevention or delay of developing care needs, or improve the quality of care in the local authority’s area.

2. Integrating Care and Support with other Local Services

There is a requirement that:

  • the local authority must carry out its care and support responsibilities with the aim of promoting greater integration with NHS and other health related services;
  • the local authority and its relevant partners must cooperate generally in performing their functions related to care and support; and supplementary to this;
  • in specific individual cases, the local authority and its partners must cooperate in performing their respective functions relating to care and support and carers wherever they can.

This applies to all the local authority’s care and support functions for adults with needs for care and support and for carers, including:

The local authority is not solely responsible for promoting integration with the NHS, and this responsibility reflects similar duties placed on NHS England and Integrated Care Boards (ICBs) to promote integration with care and support. There is also an equivalent duty on local authorities to integrate care and support provision with health related services, for example housing.

3. Multi Agency Working: Preventing Abuse and Neglect

See also Preventing Abuse and Neglect

Safeguarding adults from abuse and neglect is a fundamental part of the Care Act 2014. Identification and management of risk is an essential part of any assessment undertaken by a professional working with adults.

As noted above, the local authority must cooperate with its partners, and those partners must also cooperate with the local authority to provide care and support, and safeguard adults.

Relevant partners of the local authority include neighbouring authorities with whom they provide joint shared services and the following agencies or bodies who operate within the local authority’s area including:

  • NHS England;
  • Integrated Care Boards (ICBs);
  • NHS trusts and NHS foundation trusts;
  • Department for Work and Pensions;
  • the police;
  • prisons;
  • probation services.

The local authority must also cooperate with such other agencies or bodies as it considers appropriate in exercising its adult safeguarding functions, including (but not limited to):

  • general practitioners;
  • dentists;
  • pharmacists;
  • NHS hospitals;
  • housing, health and care providers.

All agencies should stress the need for preventing abuse and neglect wherever possible. Observant professionals and other staff making early, positive interventions with individuals and families can make a significant difference to their lives; preventing the deterioration of a situation or the breakdown of a support network. It is often when people become increasingly isolated and cut off from families and friends that they become extremely vulnerable to abuse and neglect.

All agencies should implement robust risk management processes in order to prevent concerns escalating to a crisis point and requiring intervention under safeguarding adult procedures.

Partners should ensure that they have the mechanisms in place that enable early identification and assessment of risk, through timely information sharing and multi-agency working. Multi-agency safeguarding hubs may be one model to support this but are not the only one. Policies and strategies for safeguarding adults should include measures to minimise the circumstances, including isolation, which make adults vulnerable to abuse.

See also Safeguarding Case Studies.

4. Integration and Cooperation: Safeguarding

Safeguarding requires collaboration between partners in order to create a framework of inter-agency arrangements.

The Care Act 2014 requires that local authorities and their relevant partners must collaborate and work together as set out in the cooperation duties in the Care Act and, in doing so, must, where appropriate, also consider the wishes and feelings of the adult on whose behalf they are working.

Local authorities may cooperate with any other body they consider appropriate where it is relevant to their care and support functions. The lead agency with responsibility for coordinating adult safeguarding arrangements is the local authority, but all the members of the South Tyneside Safeguarding Children and Adults Partnership should designate a lead officer. Other agencies should also consider the benefits of having a lead for adult safeguarding.

5. Strategic Planning

5.1 Integration with health and health related services

To ensure greater integration of services, the local authority should consider the different mechanisms through which it can promote integration, for example:

  • planning: using adult care and support and public health data to understand the profile of the population and the needs of that population, for example, using information from the local Joint Strategic Needs Assessments (JSNA) to consider the wider need of that population in relation to housing (see Joint Strategic Needs Assessments and Joint Local Health and Wellbeing Strategies);
  • commissioning: utilising JSNA data, joint commissioning can result in better outcomes for populations in the local area. This may include jointly commissioned advice services covering healthcare and housing, and services like housing related support that can provide a range of preventative interventions alongside care;
  • assessment and information and advice: this may include integrating an assessment with information and advice about housing options on where to live, and adaptations to the home, care
  • and related finance to help develop a care plan, and understand housing choices reflecting the person’s strengths and capabilities to help achieve their desired outcomes;
  • delivery or provision of care and support: this is integrated with an assessment of the home, including general upkeep or scope for aids and adaptations, community equipment of other modifications could reduce the risk to health, help maintain independence or support reablement or recovery.

Joint Strategic Needs Assessments and Joint Local Health and Wellbeing Strategies are, therefore, key means by which local authorities work with Integrated Care Boards (ICBs) to identify and plan to meet the care and support needs of the local population, including carers.

6. Cooperation of Partner Organisations

Cooperation between partners should be a general principle for all those concerned, and all should understand the reasons why cooperation is important for those people involved. There are five aims of cooperation relevant to care and support, although the purposes of cooperation should not be limited to these matters:

  1. promoting the wellbeing of adults needing care and support and of carers;
  2. improving the quality of care and support for adults and support for carers (including the outcomes from such provision);
  3. smoothing the transition from children’s to adults’ services;
  4. protecting adults with care and support needs who are currently experiencing or at risk of abuse or neglect;
  5. identifying lessons to be learned from cases where adults with needs for care and support have experienced serious abuse or neglect.

6.1 Who must cooperate?

The local authority must cooperate with each of its relevant partners, and the partners must also cooperate with the local authority, in relation to relevant functions. There are specific ‘relevant partners’ who have a reciprocal responsibility to cooperate. These are:

  • other local authorities within the area (in multi-tier authority areas, this will be a district council);
  • any other local authority which would be appropriate to cooperate with in a particular set of circumstances (for example, another authority which is arranging care for a person in the home area);
  • NHS bodies in the authority’s area (including primary care, Integrated Care Boards, any hospital trusts and NHS England, where it commissions health care locally);
  • local offices of the Department for Work and Pensions (such as Job Centre Plus);
  • police services in the local authority areas and prisons and probation services in the local area.

There may be other persons or bodies with whom a local authority should cooperate, in particular independent or private sector organisations for example care and support providers, NHS primary health providers, independent hospitals and private registered providers of social housing, the Care Quality Commission and regulators of health and social care professionals.

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1. Introduction

People in custody or custodial settings who have needs for care and support should be able to access the care they need, just like anyone else. In the past, responsibilities for meeting the needs of prisoners were not always clear, and this led to confusion between local authorities, prisons and other organisations and made it difficult to ensure people’s eligible needs were met. The Care Act 2014 clarifies local responsibilities for people in custody with care and support needs.

Prisoners often have complex health and care needs and experience poorer health and mental health outcomes than the general population. Research has found higher rates of mental illness, substance misuse and learning disabilities among people in custody than in the general population. Access to good, joined up health and care support services is therefore important for these groups.

All adults in custody, as well as offenders in the community, should expect the same level of care and support as the rest of the population. This is crucial to ensure that those in the criminal justice system who are in need of care and support achieve the outcomes that matter to them, and that will support them to live as independently as possible at the end of their detention.

This chapter relates only to custodial settings in England.

1.1 Role of local authorities

Adults in a custodial setting should be treated as if they are ordinarily resident in the local authority area where the custodial setting is located (see Ordinary Residence chapter).

Adults who are bailed to a particular address in criminal proceedings are treated as ordinarily resident in the local authority area where they are required to reside as part of their bail conditions.

Local authorities are responsible for the assessment of all adults who are in custody in their area and who appear to be in need of care and support, regardless of which area they came from at the start of their detention or where they will be released to. If an adult is transferred to another custodial establishment in a different local authority area, responsibility will transfer to the new area. The prison or approved premises to which an adult is allocated is decided by the Ministry of Justice.

Prisoners, especially those serving long sentences, may develop eligible needs over the course of their prison sentence. Local authorities have a duty to provide information and advice on what can be done to prevent or delay the development of such care and support needs. Access to the internet may be limited in prisons and other custodial settings, so it is important to consider the most appropriate format for information and advice to be provided, such as easy read leaflets.

Although not all local authority areas contain prisons or approved premises, all areas will be responsible for ensuring continuity of care for adults with eligible needs who are released into their area with a package of care . Similarly local authorities must support continuity of care for any of their residents moving into custody.

2. Definitions

Prison: references to a prison include young offender institutions (which hold young people aged 15 -21 years), secure training centres or secure children’s homes. A reference to a governor, director or controller of a prison includes a reference to the governor, director or controller of a young offender institution, to the governor, director or monitor of a secure training centre and to the manager of a secure children’s home. A reference to a prison officer or prisoner custody officer includes a reference to a prison officer or prisoner custody officer as a young offender institution, to an officer or custody officer at a secure training centre and to a member of staff at a secure children’s home.

Approved premises: these are premises which are approved as accommodation under the Offender Management Act 2007 for the supervision and rehabilitation of offenders, and for people on bail. They are usually supervised hostel type accommodation.

HM Prison and Probation Service (HMPPS): is an executive agency, sponsored by the Ministry of Justice. The agency is made up of HM Prison Service, Probation Service and Youth Custody Service. Within England and Wales, HMPPS are responsible for:

  • running prison and probation services;
  • rehabilitation services for people leaving prison;
  • ensuring the availability of support to stop people reoffending;
  • contract managing private sector prisons and services such as:
    • the prisoner escort service;
    • electronic tagging.

Through HM Prison Service they manage public sector prisons and the contracts for private prisons in England and Wales.

Probation Service: the probation service is responsible for working with adult offenders, both in the community and during a move from prison to the community, to reduce reoffending and improve rehabilitation. The probation service sits within HMPSS.

HM Inspectorate of Prisons / Probation: HMI Prisons is an independent inspectorate which reports on conditions for and treatment of those in prison, young offender institutions and immigration detention facilities. HMI Probation is an independent inspectorate on the effectiveness of work with adults, children and young people who have offended aimed at reducing reoffending and protecting the public.

Prisons and Probation Ombudsman (PPO): PPO investigates complaints from prisoners, those on probation and those held in immigration removal centres. The Ombudsman also investigates all deaths that occur among prisoners, immigration detainees and the residents of approved premises.

3. Information Sharing

See also South Tyneside Multi-Agency Information Sharing Agreement

Local authorities are responsible for the security of information held on people who are in custodial settings, and should develop agreements with partner agencies in line with the policies and procedures of Ministry of Justice and HMPPS which enable appropriate information sharing on individuals, including the sharing of information about risk to the prisoner and others where this is relevant. See also Information Sharing Policy Framework (gov.uk).

If a local authority is providing care and support to a person who is remanded (awaiting trial) or sentenced to custody, bailed to approved premises, or required to live in approved premises as part of a community sentence, the recent assessment and care and support plan should be shared with the custodial setting and the local authority in which it is based (if different) so that care and support may continue.

Prisons and /or prison health services should inform their local authority when someone they believe has care and support needs arrives at their establishment (see Integration, Cooperation and Partnerships chapter). The local authority may also receive requests for information from managers of custodial settings or the probation service when an adult who has already received care and support in the community is remanded or sentenced to custody. The information requested should be provided as soon as possible.

The local authority and partners in the criminal justice system should put in place processes for identifying people in custodial settings who are likely to have or to develop care and support needs. This could include when the adult is screened on arrival at the prison or during health assessments.

4. Assessments of Need

When a local authority is informed that an adult in a custodial setting may have care and support needs, they must carry out an assessment as they would for someone in the community. The same standards and approach to assessment and decision making about whether someone has care and support needs should apply to adult in custodial settings, as to those who are not in the criminal justice setting, bearing in mind that an adult in prison will no longer have the same level of support they may have relied upon in the community. It is likely that there will be complexities for carrying out assessments in custodial settings and consideration should be given to how such assessments will be carried out in the most efficient way for all involved.

The local authority may also combine a needs assessment with any other assessment it is carrying out, or it may carry out assessments jointly with, or on behalf of another organisation, for example prisoners’ health assessments.

Adults in a custodial setting also have a right to self-refer for an assessment. The local authority should provide appropriate types of care and support prior to completion of the assessment, if the person has urgent needs.

If an adult in a custodial setting refuses a needs assessment, the local authority is not required to carry out the assessment, unless:

Once a local authority has assessed an adult in custody as needing care and support it must decide if some or all of these needs meet the eligibility criteria.

Where an adult does not meet the eligibility criteria, they must be given written information about:

  • what can be done to meet or reduce their needs and what services are available; and
  • what can be done to prevent or delay the development of needs for care and support in the future.

4.1 Eligibility

The threshold for the provision of care and support does not change in custodial settings. When an adult is in a custodial setting, this should not in any way affect the assessment and recording of their eligible needs. However, the setting in which the care and support will be provided is likely to be different from community or other settings, and this should be taken into account during the care and support planning process when agreeing how best to meet the adult’s care and support needs. The extent and nature of their needs should be identified before taking into account the environment in which they live.

If a safeguarding issue is identified, the prison or approved premises management should be notified in line with with HMPPS policy on adult safeguarding.

4.2 Information

See also Information and Advice chapter

For any of the adult’s needs that are not eligible, the local authority must provide information and advice to them on how those needs can be met, and how they can be prevented from getting worse. It is good practice to copy this information to managers of custodial settings, with the adult’s consent, as this will help them manage their needs.

Prisoners, especially those serving long sentences, may develop eligible needs over the course of their prison sentence. Local authorities have a duty to provide information and advice on what can be done to prevent or delay the development of care and support needs (see Preventing, Delaying or Reducing Needs chapter). Low level preventative support and information and advice can help adults in custody maintain their own health and wellbeing.

4.3 Choice of accommodation

The right to a choice of accommodation does not apply to those in a custodial setting except when an adult is preparing for release or resettlement in the community.

It is important that, where appropriate, adults in custodial settings, are supported to maintain links with their families, as long as this in the best interests of the adult and there are no public protection requirements or safeguarding concerns which may limit or prohibit family or other personal contact. While it may not always be possible or appropriate to involve family members directly in assessment or care planning, the adult should be asked whether they would like to involve others in these processes.

If it is not possible to involve families directly, the local authority should ask the adult if they would like others to be informed that an assessment is taking place and the outcome of that assessment and any care and support plan.

5. Carer’s Assessments

Prisoners, residents of approved premises or staff in prisons or approved premises will not take on the role of carer as defined by the Care Act and should therefore not in general be entitled to a carer’s assessment.

6. Charging and Assessing Financial Resources

As in the community, adults in custodial settings will be subject to a financial assessment to decide how much they may pay towards the cost of their care and support. Where it is unlikely the adult will be required to contribute towards the cost of their care and support ‘light touch’ assessments can be carried out. It the adult does not meet the eligibility threshold for local authority support, but wants to purchase care services, this request should be referred for decision to HMPPS.

7. After the Assessment

The local authority should ensure that all relevant partners are involved in care and support planning and take part in joint planning with health partners.

Where a local authority is required to meet needs for care and support, a care and support plan must be prepared.  The adult should be involved in this process. The local authority should also involve others concerned with the adult’s health and wellbeing, including prison staff, probation offender managers, staff of approved premises and health care staff, to ensure integration of care, as well as what is possible within the custodial regime. Any safeguarding issues are to be addressed in the care and support plan.

While every effort should be made to put adult’s in control of their care and for them to be actively involved and be able to influence the planning process. It should be explained that the custodial setting may limit the range of care options available and some, such as direct payments, do not apply in a custodial setting. Where an adult’s ability to exercise choice and control is limited in this way, this should be discussed with them and recorded as part of the care planning process. However, the plan must contain the elements as outlined in Chapter 10 Care and Support Planning, Care and Support Statutory Guidance, including the allocated personal budget. This will ensure that the adult is clear about the needs to be met, the cost of meeting those needs and how being in custody means their choice and control is limited.

The local authority should seek consent from the adult so that their care plans can be shared with other providers of custodial and resettlement services including custodial services, the probation service, prison healthcare providers and managers of approved premises as relevant. For residents of approved premises, the local authority should always liaise with the responsible offender manager in probation services.

7.1 Equipment and adaptations

If an adult needs equipment or adaptations to meet their care and support needs, this should be discussed with the prison, approved premises and health care services to identify which agency is responsible for providing them. Where this relates to fixtures and fittings (for instance a grab rail or a ramp), it will usually be for the prison to deliver this. But for specialised and moveable items such as beds and hoists, then it may be the local authority that is responsible. Aids for adults are the responsibility of the local authority, whilst more significant adaptations would the responsibility of the custodial establishment. See Adult Social Care Prison Service Instruction.

Care and support plans for those in custodial settings are reviewed in the same way as all other plans. The local authority should also review the adult’s care and support plan each time they go into custody from the community, or are released from custody.

8. Direct Payments

Direct payments do not apply in prisons and approved premises, and cannot be made to people in custodial settings.

Adults living in bail accommodation or approved premises who have not yet been convicted are entitled to direct payments, as they would have been whilst in their own homes.

9. Continuity of Care and Support when an Adult Moves

Adults in custody with care and support needs must have continuity of care if they are moved to another custodial setting and when they are being released from prison back into the community. Adults in custody cannot be said to be ordinarily resident there because the concept of ordinary residence is based on the person living there voluntarily. This means they might be ordinarily resident where they previously lived. However, it is the local authority where the custodial setting is situated which is responsible for assessments and services while the adult is in custody. When an adult is being released from prison, their ordinary residence will generally be in the local authority where they intend to live on a permanent basis.

There will be circumstances where the process to ensure continuity of care will need to differ, for example when a prisoner is moved between establishments or when they are released in another area because of the nature of their offence. The prison or approved premises to which an adult is allocated is decided by the Ministry of Justice, and adults can be moved between different custodial settings. In such cases, the Governor of the prison or a representative, should inform the local authority in which the prison is located (the first authority) that the adult is to be moved or is being released to a new area. If this is a move to a custodial setting or release into the community in the same authority, then the first authority will remain responsible for meeting the adult’s care and support needs. Where the new custodial setting or the community, if being released, is in a different local authority area (second authority), the first authority must inform the second authority of the move once it has been told by the prison.

The prison, both local authorities and where practicable, the adult should work together to ensure that the adult’s care and support is continued during the move. It is good practice for the first and second local authority (and the transferring and receiving prisons where appropriate) to have a named member of staff to lead on arrangements for individuals during the transfer. Both local authorities must share relevant information, including the adult’s care and support plan.

The second authority should assess the adult before they are moved, but this may not always be possible (for example, if they were informed of the transfer at short notice). In such circumstances the second authority must continue to meet the care and support needs that the first authority was meeting until it has carried out its own assessment.

10. People Leaving Prison: Ordinary Residence

The Care Act states that in most circumstances, a person’s ordinary residence is retained where they have their needs met in certain types of accommodation in another local authority area. However, this does not apply to people who are leaving prison.

Therefore, where an adult requires a specified type of accommodation (see Ordinary Residence chapter) to be arranged on release from prison to meet their eligible needs, the local authority should start from an assumption that they remain ordinarily resident in the area in which they were ordinarily resident before the start of their sentence.

However, deciding an adult’s ordinary residence on release from prison will not always be straightforward and each case must be considered on an individual basis. For example, it may not be possible for an adult to return to their prior local authority area due to the history of their case and any risks associated with them returning to that area.

In situations where an adult is likely to have needs for care and support services on release from prison or approved premises and their place of ordinary residence is unclear and / or they express an intention to settle in a new local authority area, the local authority to which they plan to move should take responsibility for carrying out their needs assessment.

Given the difficulties associated with deciding ordinary residence on release, prisons or approved premises, the probation service and the local authority providing care and support should initiate joint planning for release in advance. Early involvement of all agencies, particularly the probation service, should ensure that the resettlement plan is workable in the local authority area where the adult will live.

11. End of Life Care

The provision of care and support for those in custodial settings also applied to those who reach the end of life whilst in prison. Some adults will transfer to a local hospital, hospice or care home or move to an alternative prison for palliative care. In these cases, responsibility for care and support will pass to the NHS or new local authority, once the adult arrives at the new location. Approved premises are not usually a suitable location for the provision of end of life care.

Prison managers and health care providers should consider informing local authorities when a prisoner receives a terminal diagnosis or their condition deteriorates significantly. The adult’s consent to share such information should be obtained where possible.

Where it is not possible to obtain consent to share this information, managers of custodial settings and health care providers should make an individual assessment and consider the legal basis for sharing information (see Data Protection chapter).

Local authorities should work with the prison healthcare provider to ensure that the care and support needs of the prisoner are met throughout the provision of end of life care.

12. NHS Continuing Healthcare

NHS Continuing Healthcare (CHC) is care which is arranged and funded by the NHS and provided to adults who have been assessed as having a ‘primary health need’. It is provided to people aged 18 or over, to meet needs that have arisen as a result of disability, accident or illness. NHS Continuing Healthcare is not dependent on a person’s condition or diagnosis but is based on their specific care needs.

13. Safeguarding Adults

See Safeguarding Enquiries Process

Local authority staff and care providers must understand what to do where they have a concern about abuse and / or neglect of an adult in custody. Prison and probation staff may approach the local authority for advice and assistance with adult safeguarding concerns in individual, but the local authority does not have the legal duty to lead safeguarding enquiries in any custodial setting.

14. Transition from Children’s to Adult Care and Support

Local authorities should have processes to identify young people in young offender institutions, secure children’s homes, secure training centres or other places of detention as well as young people in the youth justice system, who are likely to have eligible needs for care and support as adults, and who are approaching their eighteenth birthday. These young people should receive a transition assessment when appropriate (see Transition to Adult Care and Support chapter).

This also applies where a young person moves from a young offender institution to an adult prison, which may change which local authority is responsible for them. A request for an assessment can be made on the young person’s behalf by the professional responsible for their care in the young offenders’ institution, secure children’s home or secure training centre.

15. Care Leavers

If a young person is entitled to care and support and services as a care leaver, this status remains unchanged while they are in custody and the local authority that looked after the young person retains responsibility for providing leaving care services during their time in custody and on release.

Local authorities have a duty to provide personal adviser (PA) support to all care leavers up to age 25, if they want this support.

16. Independent Advocacy Support

Adults in custody are entitled to the support of an independent advocate during needs assessments and care and support planning and reviews of plans if they would have significant difficulty in being involved in the process. It is the local authority’s duty to arrange an independent advocate, as they would for an individual in the community (see Independent Advocacy chapter).

The local authority should agree with managers of custodial establishments how the advocacy scheme will work in their establishments.

17. Investigations

The Prisons and Probation Ombudsman (PPO) conducts investigations in prisons following complaints about prison services, as well as deaths in custody or other significant events. The PPO will commission a relevant body to assist their investigations where it is felt that an aspect of care and support provision has contributed to the event. The local authority should co- operate with any investigations as required.

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This chapter provides information for multi-agency practitioners in relation to young people transitioning to adult services. It outlines the role of the local authority and partner agencies in this process when working with the young person and their carer / family.

SOUTH TYNESIDE SPECIFIC INFORMATION

Bridging the Gap: Transitional Safeguarding and the Role of Social Work with Adults – A Knowledge Briefing 

Children, Young People and Modern Slavery: A Guide for Professionals (NERSOU and the Children’s Society)

RELEVANT CHAPTERS

Integration, Cooperation and Partnerships

RELEVANT INFORMATION

Chapter 16, Transition to Adult Care and Support, Care and Support Statutory Guidance (Department of Health and Social Care)

See also Transition to Adult Care and Support Case Studies

September 2021: This chapter has been updated to include a link to Bridging the Gap: Transitional Safeguarding and the Role of Social Work with Adults – A Knowledge Briefing and Children, Young People and Modern Slavery: A Guide for Professionals, as above.

1. Introduction

Transition is the term used to describe the process which is in place to support young people and their families move from services they have received as a child into those that they need when they become an adult.

Effective person centred transition planning is essential to help young people and their families prepare for adulthood. Transition to adult care and support comes at a time when a lot of change can take place in a young person’s life. It can also mean changes to the care and support they receive from education, health and care services, or involvement with new agencies such as those who provide support for housing, employment or further education and training.

The years in which a young person is approaching adulthood should be full of opportunity. Some of the issues that matter for young people approaching adulthood, and their families, may include (but are not limited to):

  • paid employment;
  • good health;
  • completing exams or moving to further education;
  • independent living (choice and control over one’s life and good housing options);
  • social inclusion (friends, relationships and community).

The wellbeing of each young person or carer must be taken into account so that assessment and planning is based around the individual needs, wishes, and outcomes which matter to that person (see Promoting Wellbeing chapter).

Historically, there has sometimes been a lack of effective planning for people using children’s services who are approaching adulthood. Looked after children, young people with disabilities, and carers are often among the groups of people with the lowest life chances. Early conversations provide an opportunity for young people and their families to reflect on their strengths, needs and desired outcomes, and to plan ahead for how they will achieve their goals.

Professionals from different agencies, families, friends and the wider community should work together in a coordinated manner around each young person or carer to help raise their aspirations and achieve the outcomes that matter to them.

The purpose of carrying out transition assessments is to provide young people and their families with information so that they know what to expect in the future and can prepare for adulthood.

Transition assessments can develop solutions which do not necessarily involve the provision of services, and which may aid planning that helps to prevent, reduce or delay the development of needs for care or support.

2. When a Transition Assessment must be Carried Out

Transition assessments should take place at the right time for the young person or carer and at a point when the local authority can be reasonably confident about what the young person’s or carer’s needs for care or support will look like after the young person in question turns 18. There is no set age when young people reach this point; every young person and their family are different, and as such, transition assessments should take place when it is most appropriate for them.

The local authority must carry out a transition assessment of anyone in the three  groups when there is significant benefit to the young person or carer in doing so, and if they are likely to have needs for care or support after turning 18. The provisions in the Care Act relating to transition to adult care and support are not only for those who are already receiving children’s services, but for anyone who is likely to have needs for adult care and support after turning 18.

3. Significant Benefit

When considering if it is of ‘significant benefit’ to assess, the local authority should consider the circumstances of the young person or carer, and whether it is an appropriate time for the young person or carer to undertake an assessment which helps them to prepare for adulthood.

The consideration of ‘significant benefit’ is not related to the level of a young person or carer’s needs, but rather to the timing of the transition assessment.

When considering whether it is of significant benefit to assess, a local authority should consider factors which may contribute to establishing the right time to assess (including but not limited to the following):

  • the stage they have reached at school and any upcoming exams;
  • whether the young person or carer wishes to enter further / higher education or training;
  • whether the young person or carer wishes to get a job when they become a young adult;
  • whether the young person is planning to move out of their parental home into their own accommodation;
  • whether the young person will have care leaver status when they become 18;
  • whether the carer of a young person wishes to remain in or return to employment when the young person leaves full time education;
  • the time it may take to carry out an assessment;
  • the time it may take to plan and put in place the adult care and support;
  • any relevant family circumstances;
  • any planned medical treatment/

For young people with special educational needs or disabilities (SEND) who have an education, health and care (EHC) plan under the Children and Families Act 2014, preparation for adulthood must begin from year 9 – see Special Educational Needs & Disability (SEND) Code of Practice. The transition assessment should be undertaken as part of one of the annual statutory reviews of the EHC plan, and should inform a plan for the transition from children’s to adult care and support.

Equally for those without EHC plans, early conversations with local authorities about preparation for adulthood are beneficial – when these conversations begin to take place will depend on individual circumstances.

For care leavers, local authorities should consider using the statutory Pathway Planning process as the opportunity to carry out a transition assessment where appropriate.

Local authorities should not carry out the transition assessment at inappropriate times in a young person’s life, such as when they are sitting their exams and it would cause disruption. The SEND Code of Practice similarly states that local authorities must minimise disruption to the child and their family – for example by combining multiple appointments where possible. Local authorities should seek to agree the best time for assessments and planning with the young person or carer, and where appropriate, their family and any other relevant partners.

In more complex cases, it can take some time not only to carry out the assessment itself but to plan and put in place care and support. Social workers will often be the most appropriate lead professionals for complex cases. Transition assessments should be carried out early enough to ensure that the right care and support is in place when the young person moves to adult care and support.

When transition assessments take place too late and care and support is arranged in a hurry, it can result in care and support which does not best meet the young person or carer’s needs – and sometimes at greater financial cost to the local authority than if it had been planned properly in advance.

4. Requests for Transition Assessment

A young person or carer, or someone acting on their behalf, has the right to request a transition assessment. The local authority must consider such requests and whether the likely need and significant benefit conditions apply – and if so it must undertake a transition assessment.

5. Refusal of Transition Assessment

If the local authority thinks these conditions do not apply and refuses an assessment on that basis, it must provide its reasons for this in writing in a timely manner, and it must provide information and advice on what can be done to prevent or delay the development of needs for support.

Where someone is refused (or they themselves refuse) a transition assessment, but at a later time makes a request for an assessment, the local authority must again consider whether the likely need and significant benefit conditions apply, and carry out an assessment if so.

6. Identifying Young People and Young Carers who are not already receiving Children’s Services

Most young people who receive transition assessments will be children in need under the Children Act 1989 and will already be known to local authorities.

However, local authorities should consider how they can identify young people who are not receiving children’s services who are likely to have care and support needs as an adult. Key examples include:

  • young people with degenerative conditions;
  • young people (for example with autism) whose needs have been largely met by their educational institution, but who once they leave, will require their needs to be met in some other way;
  • young people detained in the youth justice system who will move to the adult custodial estate;
  • young carers whose parents have needs below the local authority’s eligibility threshold but may nevertheless require advice or support to fulfil their potential, for example a child with deaf parents who is undertaking communication support;
  • young people and young carers receiving Children and Adolescent Mental Health Services (CAMHS) may also require care and support as adults even if they did not receive children’s services from the local authority.

Even if they are not eligible for services, a transition assessment with good information and advice about support in the community can be particularly helpful for these groups as they are less likely to be aware of this.

When young people who have not been in contact with children’s services present to the local authority as a young adult, they often do so with a high level of need for care and support. Local authorities should consider how to work with education and health services to identify these groups as early as possible so they can plan and prevent the development of care and support needs (see Integration, Cooperation and Partnerships and Special Educational Needs & Disability (SEND) Code of Practice ‘Preparing for Adulthood’).

7. Adult Carers and Young Carers

Preparation for adulthood will involve assessing how the needs of young people change as they approach adulthood and also how carers’, young carers’ and other family members’ needs might change over time.

The local authority must assess the needs of an adult carer where there is a likely need for support after the child turns 18 and it is of significant benefit to the carer to do so. For instance, some carers of disabled children are able to remain in employment with minimal support while the child has been in school. However, once the young person leaves education, it may be the case that the carer’s needs for support increase, and additional support and planning is required from the local authority to allow the carer to stay in employment.

The local authority must also assess the needs of young carers as they approach adulthood. For instance, many young carers feel that they cannot go to university or enter employment because of their caring responsibilities. Transition assessments and planning must consider how to support young carers to prepare for adulthood and how to raise and fulfil their aspirations.

The local authority must consider the impact on other members of the family (or other people the authority may feel appropriate) of the person receiving care and support. This will require the authority to identify anyone who may be part of the person’s wider network of care and support. For example, caring responsibilities could have an impact on siblings’ school work, or their aspirations to go to university. Young carers’ assessments should include an indication of how any care and support plan for the person/s they care for would change as a result of the young carer’s change in circumstances. For example, if a young carer has an opportunity to go to university away from home, the local authority should indicate how it would meet the eligible needs of any family members that were previously being met by the young carer.

8. Features of a Transition Assessment

The transition assessment should support the young person and their family to plan for the future, by providing them with information about what they can expect. All transition assessments must include an assessment of:

  • current needs for care and support and how these impact on wellbeing;
  • whether the child or carer is likely to have needs for care and support after the child in question becomes 18;
  • if so, what those needs are likely to be, and which are likely to be eligible needs;
  • the outcomes the young person or carer wishes to achieve in day to day life and how care and support (and other matters) can contribute to achieving them.

Transition assessments for young carers or adult carers must also specifically consider whether the carer:

  • is able to care now and after the child in question turns 18;
  • is willing to care now and will continue to after 18;
  • works, or wishes to do so;
  • is or wishes to participate in education, training or recreation.

The young person or carer in question must be involved in the assessment for it to be person centred and reflect their views and wishes. The assessment must also involve anyone else who the young person or carer wants to involve in the assessment. For example, many young people will want their parents involved in their process.

9. Capacity

See also Mental Capacity chapter

In all cases, the young person or carer in question must agree to the assessment where they have mental capacity and are competent to agree. Where a young person or carer lacks mental capacity or is not competent to agree, the local authority must be satisfied that an assessment is in their best interests. Everyone has the right to refuse a transition assessment, however the local authority must undertake an assessment regardless if it suspects that a child is experiencing or at risk of abuse or neglect.

The right of young people to make decisions is subject to their capacity to do so as set out in the Mental Capacity Act 2005. The underlying principle of the Act is to ensure that those who lack capacity are supported to make as many decisions for themselves as possible, and that any decision made or action taken on their behalf, is done so in their best interests. This is a necessity if the transition assessment is to be person centred.

For young people below the age of 16, local authorities will need to establish a young person’s competence using the test of ‘Gillick competence’ (whether they are able to understand a proposed treatment or procedure). Where the young person is not competent, a person with parental responsibility will need to be involved in their transition assessment, – or an independent advocate provided if there is no one appropriate to act on their behalf (either with or without parental responsibility).

10. Independent Advocacy

The Care Act places a duty on local authorities to provide an independent advocate to facilitate the involvement in the transition assessment where the person in question would experience substantial difficulty in understanding the necessary information or in communicating their views, wishes and feelings – and if there is nobody else appropriate to act on their behalf (see Independent Advocacy chapter). This duty applies for all young people or carers who meet the criteria, regardless of whether they lack mental capacity as defined under the Mental Capacity Act 2005.

11. Information Sharing

When sharing information with a young carer about the person they care for a supported self-assessment during transition, the local authority must be satisfied that it is appropriate for the young carer to have the information. They must have regard to all circumstances in taking this decision, especially the age of the young carer, however each case will be different and there is no one age at which a young carer is necessarily old enough to receive information. The local authority must ensure that the adult consents to have their information shared in this way.

12. Cooperation between Professionals and Organisations

People with complex needs for care and support may have several professionals involved in their lives, and numerous assessments from multiple organisations. For children with special educational needs, the Children and Families Act 2014 brings these assessments together into a coordinated EHC plan (see SEND Code of Practice, Chapter 9).

Local authorities must cooperate with relevant partners, and this duty is reciprocal (see Integration, Cooperation and Partnerships chapter). This includes an explicit requirement which states that children and adult services must cooperate for the purposes of transition to adult care and support. Often, staff working in children’s services will have built relationships and knowledge about the young person or carer in question over a number of years. As young people and carers prepare for adulthood, children’s services and adults’ services should work together to pass on this knowledge and build new relationships in advance of transition.

It can be frustrating for children and families who have to attend multiple appointments for assessments, and who have to give out the same information repeatedly. The SEND Code of Practice highlights the importance of the ‘tell us once’ approach to gathering information for assessments and this will be important in other contexts as well. The local authority should consult with the young person and their family to discuss what arrangements they would prefer for assessments and reviews.

All relevant partners should be involved in transition planning where they are involved in the person’s care and support.

Equally, the local authority should be involved in transition planning led by another organisation, for example a child and adolescent mental health service, where there are also likely to be needs for adult care and support.

Agencies should agree how to organise transition assessments so that all the relevant professionals are able to contribute. For example, this might involve arranging a multi-disciplinary team meeting with the young person or carer. However, it may not always be possible for all the professionals from different agencies to be present at appointments, but they should still be enabled to contribute. Transition assessments must be person centred, which means that contributions by different agencies should reflect the views of the person to whom the assessment relates.

12.1 Care coordination

Many people value having one designated person who coordinates assessments and transition planning across different agencies, and helps them to navigate through numerous systems and processes that can sometimes be complicated.

Often there is a natural lead professional involved in a young person’s care who fulfils this role and the local authority should consider formalising this by designating a named person to coordinate transition assessment and planning across different agencies, and may also wish to consider setting up specialist posts carry out this coordination function for people who are preparing for adulthood.

This coordinating role, sometimes referred to as a ‘key working’ or ‘care coordination’, can not only help to deliver person centred, integrated care, but can also help to reduce bureaucracy and duplication for local authorities, the NHS and other agencies. Care coordinators are also often able to build close relationships with young people and families and can act as a valuable provider of information and advice both to the families and to local authorities. Care leavers will have Personal Advisers to provide support, for example by providing advice or signposting the young person to services. The Personal Adviser will be a natural lead in many cases to coordinate a transition from children’s to adult care and support where relevant (see also Transitions Case Studies).

13. Eligibility

Having carried out a transition assessment, the local authority must give an indication of which needs are likely to be eligible needs (and which are not likely to be eligible) once the young person in question turns 18, to ensure that the young person or carer understands the care and support they are likely to receive and can plan accordingly.

There is a particularly important role for local authorities in ensuring that young people and carers understand their likely situation when they reach adulthood. The different systems for children’s and adult care and support mean that there will be circumstances in which needs that were being met by children’s services may not be eligible needs under the adult system.

Adult care and support is subject to means testing and charging.

Where the transition assessment identifies needs that are likely to be eligible, local authorities should consider providing an indicative personal budget, so that young people, carers and their families are able to plan their care and support before entering the adult system (see SEN code of practice for further information about right to a personal budget for people with EHC plans).

For any needs that are not eligible under the adult statute, local authorities must provide information and advice on how those needs can be met, and how they can be prevented from getting worse.

14. Transition Plans

The local authority and relevant partners should consider building on a transition assessment to create a person-centred transition plan that sets out the information in the assessment, along with a plan for the transition to adult care and support, including key milestones for achieving the young person or carer’s desired outcomes.

In the case of an adult carer, if the local authority has identified needs through a transition assessment which could be met by adult services, it may meet these needs under the Care Act in advance of the child being cared for turning 18.

In deciding whether to do this the local authority must have regard to what support the adult carer is receiving under children’s legislation.

If the local authority decides to meet the adult carer’s needs through adult services, as for anyone else under the adult legislation, the adult carer must receive a support plan and a personal budget – as well as a financial assessment if they are subject to charges for the support they will receive.

15. Moving to Adult Care after the Young Person or Carer turns 18

There is no obligation on the local authority to move from children’s social care to adult care and support as soon as someone turns 18.

Very few moves will take place on the day of someone’s 18th birthday.

For the most part, the move to adult services begins at the end of a school term or another similar milestone, and in many cases should be a staged process over several months or years.

Prior to the move taking place, the local authority must decide whether to treat the transition assessment as a needs or carers assessment under the Care Act.

In making this decision the local authority must take into account when the transition assessment was carried out and whether the person’s circumstances have changed.

If the local authority will meet the young person’s or carer’s needs under the Care Act after they have turned 18 (based either on the existing transition assessment or a new needs assessment if necessary), the local authority must then undertake the care planning process as for other adults – including creating a care and support plan and producing a personal budget.

The local authority should ensure that this happens early enough that a package of care and support is in place at the time of transition.

16. Continuity of Care after the age of 18

Young people and their carers have sometimes faced a gap in provision of care and support when they turn 18, and this can be distressing and disruptive to their lives.

The local authority must not allow a gap in care and support when young people and carers move from children’s to adult services.

If transition assessment and planning is carried out as it should be, there should not be any gap in provision of care and support.

However, if adult care and support is not in place on a young person’s 18th birthday, and they or their carer have been receiving services under children’s legislation, the local authority must continue providing services until the relevant steps have been taken, so that there is no gap in provision.

The ‘relevant steps’ are if the local authority:

  • concludes that the person does not have needs for adult care and support;
  • concludes that the person does have such needs and begins to meet some or all of them (the local authority will not always meet all of a person’s needs – certain needs are sometimes met by carers or other organisations);
  • concludes that the person does have such needs but decides they are not going to meet any of those needs, for instance, because their needs do not meet the eligibility criteria under the Care Act 2014.

In order to reach such a conclusion, the local authority must have conducted a transition assessment (that they will use as a needs or carers assessment under the adult statute).

Where a transition assessment was not conducted and should have been (or where the young person’s circumstances have changed), the local authority must carry out an adult needs or carer’s assessment.

In the case of care leavers, the Staying Put Guidance (HM Government, 2013) states that local authorities may choose to extend foster placements beyond the age of 18. All local authorities must have a Staying Put policy to ensure transition from care to independence and adulthood that is similar for care leavers to that which most young people experience, and is based on need and not on age alone.

For some people with complex SEN and care needs, local authorities and their partners may decide that children’s services are the best way to meet a person’s needs – even after they have turned 18. Both the Care Act 2014 and the Children and Families Act 2014 allow for this.

The Children and Families Act enables local authorities to continue children’s services beyond age 18 and up to 25 for young people with EHC plans if they need longer to complete or consolidate their education and training and achieve the outcomes set out in their plan.

Under the Care Act 2014, if, having carried out a transition assessment, it is agreed that the best decision for the young person is to continue to receive children’s services, the local authority may choose to do so.

Children and adults’ services must work together, and any decision to continue children’s services after the child turns 18 will require agreement between children and adult services.

Where a person over 18 is still receiving services under children’s legislation through their EHC plan and the EHC plan ceases, the transition assessment and planning process must be undertaken. Where this has not happened at the point of transition, the requirement under the Care Act to continue children’s services (as set out above) applies.

Both the Children and Families Act 2014 and the Care Act 2014 also require young people and their parents to be fully involved making decisions about their care and support. This includes decisions about the most appropriate time to make the transition to adult services.

The EHC plan or any transition plan should set out how this will happen, who is involved and what support will be provided to make sure the transition is as seamless as possible.

17. Safeguarding after the age 18

Where someone is over 18 but still receiving children’s services and a safeguarding issue is raised, the matter should be dealt with by the adult safeguarding team (see Safeguarding Enquiries Process).

Where appropriate, they should involve the local authority’s children’s safeguarding colleagues as well as any relevant partners (for example police or NHS) or other persons relevant to the case.

The same approach should apply for complaints or appeals, as well as where someone is moving to a different local authority area after receiving a transition assessment but before moving to adult care and support.

18. Transition from Children’s to Adult NHS Continuing Health Care

ICBs should use the National Framework for NHS Continuing Healthcare and supporting guidance and tools (especially the Decision Support Tool) to determine what ongoing care services people aged 18 years or over should receive.

The framework sets out that ICBs should ensure that adult NHS continuing healthcare is assessed at all transition planning meetings for all young people whose may be potential eligibility.

ICBs and LAs should have systems in place to ensure that appropriate referrals are made whenever either organisation is supporting a young person who, on reaching adulthood, may have a need for services from the other agency.

The framework sets out best practice for the timing of transition steps as follows:

  • children’s services should identify young people with likely needs for NHS Continuing Health Care and notify the relevant ICB when such a young person turns 14;
  • there should be a formal referral for adult NHS CHC screening at 16;
  • there should be a decision in principle at 17 so that a package of care can be in place once the person turns 18 (or later if agreed more appropriate).

Where a young person has been receiving children’s continuing health care, it is likely that they will continue to be eligible for a package of adult NHS CHC when they reach the age of 18.

Where their needs have changed such that they are assessed as no longer requiring such a package, they should be advised of this and of their right to request an independent review and mediation

The ICB should continue to participate in the transition process, in order to ensure an appropriate transfer of responsibilities, including consideration of whether they should be commissioning, funding or providing services towards a joint package of care.

Where it will benefit a young person with an EHC plan, local authorities have the power to continue to provide children’s services past a young person’s 18th birthday for as long as is deemed necessary.

Where there is a change in CHC provision, this must be recorded in the young person’s EHC plan, where they have one, and the young person must be advised of their right to ask the local authority for mediation up to the age of 25 (see SEND Code of Practice).

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CARE ACT 2014

Following the needs and carer’s assessment and determination of eligibility, a care and support plan (for an adult with care and support needs) or a support plan (for a carer) must be provided where a local authority meets a person’s needs.

RELEVANT CHAPTERS

Promoting Wellbeing

Preventing, Reducing or Delaying Needs

RELEVANT INFORMATION

Culturally Appropriate Care (Care Quality Commission) 

September 2021: This chapter has been amended to add a link to Culturally Appropriate Care published by the Care Quality Commission, as above.

Care and support should put people in control of their care, with the support that they need to enhance their wellbeing and improve their connections to family, friends and community. A vital part of this process for people with ongoing needs which the local authority is going to meet is the care and support plan, or the support plan in the case of carers.

The guiding principles in the development of the plan are that the process should be person centred and person led, in order to meet the needs and achieve the outcomes of the person in ways that work best for them as an individual or as part of a family.

The process and the outcomes should be built holistically around:

  • people’s wishes and feelings;
  • their needs;
  • values and aspirations.

These principles apply irrespective of the extent to which the person chooses or is able to actively direct the process.

Consideration of needs should also include the extent to which the needs or a person’s other circumstances may mean that they are at risk of abuse or neglect. The planning process may bring to light new information that suggests a safeguarding issue, and therefore lead to a requirement to carry out a safeguarding enquiry (see Safeguarding Enquiries Process). Where such an enquiry leads to further specific interventions being put in place to address a safeguarding issue, these  should  be included in the care and support plan.

Each partner in the plan should be clear about their role. For example, the person may need help to weigh up different service options to understand what each involves and to be able to choose the most appropriate and least restrictive option possible.

In some circumstances it may not be appropriate to jointly prepare the plan. For example, a person may not wish their family to be involved, the authority may be aware that family members may have conflicting interests, or the person may have asked the local authority to prepare the plan with someone who lives far away from the person and even with the assistance of email, phone and other methods of communication is unable to prepare the plan in a timely fashion.

The test for allowing the person and others to prepare the plan jointly with the local authority should start with the presumption that the person at the heart of the care plan should give consent for others to do so.

Safeguarding principles must be included in order to ensure that there is no conflict of interest between the person and the third party they wish to involve to prepare the plan jointly with (see Safeguarding: What is it and Why does it Matter?)

Where a person lacks capacity and cannot consent to third parties jointly preparing the plan, the local authority must always act in the best interests of the person requiring care and support.

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1. Introduction

The Care Act 2014 sets out the local authority’s functions and responsibilities for care and support. Sometimes external organisations may be better placed than the local authority itself to carry out some of these functions. For instance, an outside organisation might specialise in carrying out assessments or care and support planning for certain disability groups, where the local authority does not have the in-house expertise. External organisations may also be able to provide additional capacity to carry out care and support functions.

The Care Act allows local authorities to delegate some, but not all, of their care and support functions to other parties. This power is intended to allow flexibility for local approaches to be developed in delivering care and support, to allow local authorities to work more efficiently and innovatively and provide better quality care and support to local populations.

As with all care and support, individual wellbeing should be central to any decision to delegate a function. Local authorities should not delegate its functions simply to gain efficiency where this is to the detriment of the wellbeing of people using care and support.

2. Local Authority Responsibility

When a local authority delegates any of its functions, it still retains ultimate responsibility for how the function is carried out.

The Care Act is clear that anything done (or not done) by the third party in carrying out the function is to be treated as if it has been done (or not done) by the local authority itself. This is a core principle of allowing delegation of care and support functions.

The power to delegate functions does not supersede the ability for NHS and local authorities to enter into partnership arrangements under the National Health Service Act 2006. This means that local authorities can enter into partnership arrangements with the NHS for the NHS to carry out the local authority’s ‘health related functions’. This effectively authorises NHS bodies to exercise those prescribed functions, including the safeguarding functions that local authorities are prohibited from delegating under the Care Act (see below).

All care and support functions under the Care Act can be included in such partnership arrangements except charging, carrying out financial assessments and debt recovery.

The local authority would still remain legally responsible for how its functions are carried out via partnership arrangements, as with delegated functions.

3. Redress

People using care and support will always have a means of redress (or complaint) against the local authority for how any of its functions are carried out. For example, a local authority might delegate needs assessments to another organisation, which has its own procedures for handling complaints. If the adult, to whom the assessment relates, has a complaint about the way in which it was carried out they may choose to take it up with the organisation in question. If this does not satisfy the adult, however, or if they simply choose to complain directly to the local authority, the local authority will remain responsible for addressing the complaint.

In delegating care and support functions, local authorities should have regard to the local authority version of the Data Security and Protection Toolkit, in particular ensuring that all formal contractual arrangements include compliance with information governance requirements.

4. Contracts

The success of delegating functions to a third party will be determined to a large extent, by the strength and quality of the contracts that the local authorities make with the third party.

The local authority should ensure that contracts are drafted by staff with the necessary skills and competencies to do so.

Through the terms of their contracts local authorities have the power to impose conditions on how delegated functions are carried out. For example, when delegating assessments the local authority could choose to require that assessments must be carried out by people with a particular training or expertise, and that the training must be kept up to date.

The delegated organisation will be liable to the local authority for any breach of the contract, therefore the contract is the mechanism through which the local authority can ensure that delegated functions are carried out properly, and through which they may hold the contractor to account.

If the local authority delegates care and support functions to a third party, it should specify how long the authorisation lasts and make clear that it may revoke the authorisation at any time during that period.

Monitoring arrangements should be put in place by the local authority so that they can make sure that delegated functions are being out in an appropriate manner. This should involve building good working relationships with third parties to enable the local authority to guide third parties in carrying out delegated functions, and to learn about innovations and knowledge that third parties may be able to provide.

Since care and support functions are public functions, they must be carried out in a way that is compatible with all of the local authority’s legal obligations. For example, the local authority would be liable for any breach of its legal obligations under the Human Rights Act 1998 or the Data Protection Act 2018 by the third party. Therefore the local authority must ensure that they draw up contracts so as to ensure that third parties carry out functions in a way that is compatible with all of the local authorities legal obligations.

Local authorities retain overall responsibility for how functions are carried out, but delegated organisations will be responsible for any criminal proceedings brought against them.

The local authority can choose the extent to which they delegate their functions. For example, they could authorise an external party to carry out all the elements of the function, including for example taking final decisions, or it can limit the steps the authorised organisation may take, leaving any final decisions to the local authority. Local authorities should make clear in its contracts with authorised parties, the extent to which the function is being delegated.

The fact that the local authority delegates its functions does not mean that it cannot also continue to exercise that function itself. So, for instance the local authority could ask a specialist mental health organisation to carry out care and support planning for people with specific mental health conditions, but it may choose to do care and support planning for people with other mental health conditions itself. Or it may choose to offer people a choice between itself and the external organisation.

5. Functions which may not be delegated

The Care Act does not allow certain functions to be delegated.

These are:

  • integration and cooperation: Local authorities must cooperate and integrate with local partners. Delegating these functions would not allow them to meet their duty to work together with other agencies. Local authorities, however, should take steps to ensure that authorised parties cooperate with other partners, work in a way which supports integration, and is consistent with their own responsibilities.
  • safeguarding: The Care Act puts in place a legal framework for adult safeguarding, including:
    • the establishment of Safeguarding Adults Boards (SABs);
    • carrying out safeguarding adult reviews;
    • making safeguarding enquiries.

Since the local authority must be one of the members of SABs and it must take the lead role in adult safeguarding, it may not delegate these statutory functions to another party.

However, it may commission or arrange for other parties to carry out certain related activities. For those functions which may not be delegated (as outlined above) and as well as other functions which may be delegated, local authorities may wish to use outside expertise to carry out practical activities to support it in discharging those functions, rather than fully or formally delegating the function itself to be carried out by another party. For example, as set out above local authorities may not delegate their functions relating to establishing Safeguarding Adult Boards, making safeguarding enquiries or arranging safeguarding reviews. The duty, however, is for local authorities to make enquiries or cause them to be made.

The local authority could make an arrangement for a third party to undertake the enquiries where necessary. But, while a local authority can ask others to carry out an actual enquiry, it cannot delegate its responsibility for ensuring that this happens and ensuring that, where necessary, any appropriate action is taken.

There can be some uncertainty about the difference between:

  • delegation of a statutory care and support function; and
  • commissioning, arranging or outsourcing activities relating to the function.

Local authorities should seek legal advice about whether the activity it is seeking to commission another party to undertake is a legal function under Part 1 of the Care Act or not.

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1. Introduction

Everyone should have access to information and advice on care and support and keeping safe from abuse or neglect (see Information and Advice).

Local authorities have a responsibility to arrange an IMCA for people who lack mental capacity (see Independent Mental Capacity Advocates and Independent Mental Health Advocates).

The local authority has a duty to arrange an independent advocate for:

  • all adults, as part of their own assessment and care planning and care reviews and to those in their role as carers;
  • children who are approaching the transition to adult care and support, when a child’s needs assessment is carried out, and when a young carer’s assessment is undertaken;
  • for adults who are subject to a safeguarding enquiry or Safeguarding Adults Review (SAR).

There are two conditions which need to be met for the provision of an independent advocate:

  1. that if an independent advocate were not provided the person would have substantial difficulty in being fully involved in these processes;
  2. that there is no appropriate individual available to support and represent the person’s wishes who is not paid or professionally engaged in providing care or treatment to the person or their carer.

The aim of the duty to provide advocacy is to enable people who have substantial difficulty in being involved in these processes to be involved as fully as possible, and where necessary to be represented by an advocate who speaks on their behalf. The Equality Act 2010, requires that reasonable adjustments should be made to ensure that disabled people have equal access to information and advice services. Provision of such adjustments, information in different formats for example, may reduce or remove a substantial difficulty a person may have in being involved.

The role of the independent advocate is to support and represent the person and to facilitate their involvement in the key processes and interactions with the local authority and other organisations as required for the safeguarding enquiry or SAR.

2. Advocacy and the Duty to Involve

People must be involved fully in decisions made about them and their care and support or where there is to be a safeguarding enquiry or SAR.

Therefore the local authority must help people to understand how they can be involved, how they can contribute and take part and sometimes lead or direct the process. People should be active partners in the key care and support processes of assessment, care and support and support planning, review and any enquiries in relation to abuse or neglect. No matter how complex a person’s needs, local authorities are required to involve people, to help them express their wishes and feelings, to support them to weigh up options, and to make their own decisions.

This applies in all settings, including people living in the community, in care homes or, apart from safeguarding enquiries and SARs, in prisons.

2.1 Substantial difficulty

Local authorities must form a judgement about whether a person has substantial difficulty in being involved with these processes. If it is thought that they do, and that there is no appropriate individual to support and represent them the local authority must arrange for an independent advocate to support and represent the person.

Many people who qualify for advocacy under the Care Act will also qualify for advocacy under the Mental Capacity Act 2005 (MCA). The same advocate can provide support as an advocate under the Care Act and under the MCA. This is to enable the person to receive seamless advocacy so that they do not have to repeat their story. Whichever legislation the advocate is acting under, they should meet the appropriate requirements for an advocate under that legislation.

2.1.1 Judging ‘substantial difficulty’ in being involved

The local authority must consider, for each person, whether they would have substantial difficulty in engaging with the local authority care and support processes. The Care Act defines four areas in any one of which a substantial difficulty might be found, which are set out below.

  1. Understanding relevant information: Many people can be supported to understand relevant information, if it is presented appropriately and if time is taken to explain it. Some people, however, will not be able to understand relevant information, for example if they have mid-stage or advanced dementia.
  2. Retaining information: If a person is unable to retain information long enough to be able to weigh up options and make decisions, then they are likely to have substantial difficulty in engaging and being involved in the process.
  3. Using or weighing the information as part of engaging: A person must be able to weigh up information, in order to participate fully and choose between options. For example, they need to be able to weigh up the advantages and disadvantages of moving into a care home or terminating an undermining relationship. If they are unable to do this, they will have substantial difficulty in engaging and being involved in the process.
  4. Communicating their views, wishes and feelings: A person must be able to communicate their views, wishes and feelings whether by talking, writing, signing or any other means, to aid the decision process and to make priorities clear. If they are unable to do this, they will have substantial difficulty in engaging and being involved in the process. For example, a person with mid-stage or advanced dementia, significant learning disabilities, a brain injury or mental ill health may be considered to have substantial difficulty in communicating their views, wishes and feelings. But equally a person with Asperger’s may be considered, as may a frail older person who does not have any diagnosis but is confused as a result of an infection, or a person who is near the end of their life and appears disengaged from involvement and decision making.

Within this context, it is the person’s ability to communicate their views, wishes and feelings which is fundamental to their involvement rather than the diagnosis or specific condition.

Both the Care Act and the Mental Capacity Act recognise the same areas of difficulty, and both require a person with these difficulties to be supported and represented, either by family or friends, or by an independent advocate or independent mental capacity advocate in order to communicate their views, wishes and feelings. (See also Independent Advocacy Case Studies).

3. When the Duty to Provide Independent Advocacy for Safeguarding Applies

The local authority must arrange, for an independent advocate to support and represent an adult who is the subject of a safeguarding enquiry or a safeguarding adult review. Where an independent advocate has already been arranged under the Care Act or under the MCA 2005 then, unless inappropriate, the same advocate should be used.

Effective safeguarding is about seeking to promote an adult’s rights as well as about protecting their physical safety and taking action to prevent the occurrence or reoccurrence of abuse or neglect. It enables the adult to understand both the risk of abuse and actions that she or he can take, or ask others to take, to mitigate that risk.

There is increasing case law on adult safeguarding from the Court of Protection which advocates and practitioners should be aware.

If a safeguarding enquiry needs to start urgently it can begin before an advocate is appointed but one must be appointed as soon as possible. All agencies need to know how the services of an advocate can be accessed and what their role is.

It is critical in this particularly sensitive area (whether an enquiry or a SAR) that the adult is supported in what may feel a daunting process which may lead to some very difficult decisions. An individual who is thought to have been abused or neglected may be so demoralised, frightened, embarrassed or upset that independent advocacy to help them to be involved will be crucial. (See also Independent Advocacy Case Studies.)

4. Judgements made by the Local Authority

4.1 An appropriate individual to facilitate the person’s involvement

See also Independent Advocacy Case Studies.

Local authorities must consider whether there is an appropriate individual (or individuals) who can facilitate a person’s involvement in the assessment, planning or review processes, and this includes three specific considerations.

  1. The appropriate individual cannot be someone who is already providing the person with care or treatment in a professional capacity or on a paid basis (regardless of who employs or pays for them). That means it cannot be, for example, the person’s GP, nurse, key worker or care and support worker
  2. If the person does not wish to be supported by that individual and if the person has capacity, or is competent to consent, their wish should be respected. If the person has been judged to lack the capacity to make a decision, then the local authority must be satisfied that it is in a person’s best interests to be supported and represented by the individual. Where a person does not wish to be supported by a relative, for example, perhaps because they wish to be moving towards independence from their family, then the relative cannot be considered an appropriate person.
  3. The appropriate individual is expected to support and represent the person and to facilitate their involvement in the processes. Some people will not be able to fulfil this role easily, for instance:
    • a family member who lives at a distance and who only has occasional contact with the person;
    • a spouse who also finds it difficult to understand the local authority processes;
    • a friend who expresses strong opinions of her own prior to finding out those of the individual concerned;
    • or a housebound parent.

It is not sufficient to know the person well or to love them deeply; the role of the appropriate individual is to support the person’s active involvement with the local authority processes.

It will not be suitable for a person to be regarded as an appropriate individual where they are implicated in any enquiry of abuse or neglect or have been judged by a SAR to have failed to prevent an abuse or neglect.

Sometimes the local authority will not know at the point of first contact or at an early stage of the assessment whether there is someone appropriate to assist the person in engaging. They may need to appoint an advocate, and find later that there is an appropriate person in the person’s own network. The advocate can at that stage ‘hand over’ to the appropriate person. Alternatively, the local authority may agree with the individual, the appropriate person and the advocate that it would be best for the advocate to continue their role, though this is not a specific requirement under the legislation.

Equally, it is possible that the local authority will consider someone appropriate who may then turn out to have difficulties in supporting the person to engage and be involved in the process. The local authority must at that point arrange for an advocate.

There may also be some cases where the local authority considers that a person needs the support of both a family member and an advocate; perhaps because the family member can provide a lot of information but not enough support, or because while there is a close relationship, there may be a conflict of interest with the relative, for example in relation to inheritance of the home.

If the local authority decides that they are required to appoint an independent advocate as the person does not have friends or family who can facilitate their involvement, the local authority must still consult with those friends or family members when the person asks them to.

It is the local authority’s decision as to whether a family member or friend can act as an appropriate person to support the individual’s involvement, and to communicate this decision to the individual’s friends and family where this may have been in question. The overall aim is for people who need advocacy to be identified and, to receive consistent support as early as possible and throughout the assessment, the care and support planning and the review processes.

The local authority may be carrying out assessments of two people in the same household. If both people agree to have the same advocate, and if the local authority consider there is no conflict of interest between the individuals, or either of the individuals and the advocate, then the same advocate may support and represent the two people.

For example, if both people wish to be supported to live together in their own home, then it may make sense for one advocate to support both. But if one person wishes for the other to be moved away, there may be a conflict of interest and two advocates will be needed. If any of the people involved – the people being assessed or taking part in care and support or support planning or the advocate – consider that it would be better to have different advocates, then separate advocates should be provided.

4.2 Who can act as an advocate?

Advocates must have:

  • a suitable level of appropriate experience: this may, for example, be in non-instructed advocacy or in working with those groups of people who may have substantial difficulty in engaging with assessments and care and support planning;
  • appropriate training: this may, for example, initially be training in advocacy (non-instructed and instructed) or dementia, or working with people with learning disabilities. Once appointed, all independent advocates should be expected to work towards the National Qualification in Independent Advocacy (level 3) within a year of being appointed, and to achieve it in a reasonable amount of time;
  • competency in the task: this will require the advocacy organisation assuring itself that the advocates who work for it are all competent and have regular training and assessment
  • integrity and good character: this might be assessed through: interview and selection processes; seeking and scrutinising references prior to employment and ongoing DBS checks (see Disclosure and Barring);
  • the ability to work independently of the local authority or body carrying out assessments, planning or reviews on the local authority’s behalf: this includes the ability to make a judgement about what a person is communicating and what is in a person’s best interests, as opposed to in a local authority’s best interests, and to act accordingly to represent this;
  • arrangements for regular supervision: this will require that the person meets regularly and sufficiently frequently with a person with a good understanding of independent advocacy who is able to guide their practice and develop their competence.

The Advocacy Quality Performance Mark (QPM) was published in 2014 by the National Development Team for Inclusion (NDTi). The QPM is a tool for providers of independent advocacy to show their commitment and ability to provide high quality advocacy services – essential for people to have their voices heard, to exercise choice and control and to live independently.

To prevent potential conflict of interest, the independent advocate must not be working for the local authority, or for an organisation that is commissioned to carry out assessments, care and support plans or reviews for the local authority unless the potential conflict of interests is adequately addressed within the organisation’s structure.

In certain circumstances, in addition to their role under the Care Act, an advocate may assist an individual to develop their own care or support plan if requested to by the individual, but they cannot authorise the support plan or approve care and support plans or reviews on behalf of the authority. Nor can an advocate be appointed if they are providing care or treatment to the individual in a professional or a paid capacity.

5. The Role of the Independent Advocate

It is intended that advocates will decide the best way of supporting and representing the person they are advocating for, always with regard to the wellbeing and interest (including their views, beliefs and wishes) of the person concerned. This may involve creative approaches, for example, supporting someone to show film to help explain their needs, wishes or preferences (see also Independent Advocacy Case Studies).

In addition, where practicable, they are expected to meet the person in private. Where a person has capacity, the advocate should ask and obtain their written consent to look at their records and to talk to their carer, family, friends, care or support worker and others who can provide information about their needs and wishes, their beliefs and values.

Where a person does not have capacity to decide whether an advocate should look at their relevant records or talk to their family and friends, then the advocate should consult the records and the family and others as appropriate, but consulting the family and others only where the advocate considers this is in the person’s best interests.

The Care Act allows advocates to examine and take copies of relevant records in certain circumstances. This mirrors the powers of an Independent Mental Capacity Advocate.

Acting as an advocate for a person who has substantial difficulty in engaging with care and support or safeguarding processes is a responsible position. It includes:

  • assisting a person to understand the assessment, care and support planning and review and safeguarding processes. This requires advocates to understand local authority policies, and other agencies roles, and processes, the available assessment tools, the planning options, and the options available at the review of a care or support plan are required and good practice in safeguarding enquiries and SARs. It may involve advocates spending considerable time with the individual, considering their communications needs, their wishes and feelings and their life story, and using all this to assist the person to be involved and where possible to make decisions;
  • assisting a person to communicate their views, wishes and feelings to the staff who are carrying out an assessment or developing a care or support plan or reviewing an existing plan or to communicate their views, wishes and feelings to the staff who are carrying out safeguarding enquiries or reviews;
  • assisting a person to understand how their needs can be met by the local authority or otherwise – understanding for example how a care and support and support plan can be personalised, how it can be tailored to meet specific needs, how it can be creative, inclusive, and how it can be used to promote a person’s rights to liberty and to family life;
  • assisting the person to make decisions about their care and support arrangements – assisting them to weigh up various care and support options and to choose the ones that best meet the person’s needs and wishes;
  • assisting the person to understand their rights under the Care Act – for an assessment which considers their wishes and feelings and which considers the views of other people; their right to have their eligible needs met, and to have a care or support plan that reflects their needs and their preferences, and in relation to safeguarding, understanding their right to have their concerns about abuse taken seriously and responded to appropriately. Also assisting the person to understand their wider rights, including their rights to liberty and family life. A person’s rights are complemented by the local authority’s duties, for example to involve the person, to meet needs in a way that is least restrictive of a person’s rights;
  • assisting a person to challenge a decision or process made by the local authority; and where a person cannot challenge the decision even with assistance, then to challenge it on their behalf.

5.1 Safeguarding issues

See also Making Safeguarding Personal

In terms of safeguarding there are some particular important issues for advocates to address. These include assisting a person to:

  • decide what outcomes / changes they want;
  • understand the behaviour of others that are abusive / neglectful;
  • understand which actions of their own may expose them to avoidable abuse or neglect;
  • understand what actions that they can take to safeguard themselves;
  • understand what advice and help they can expect from others, including the criminal justice system;
  • understand what parts of the process are completely or partially within their control;
  • explain what help they want to avoid reoccurrence and also recover from the experience.

5.2 Making representations

There will be times when an advocate will have concerns about the way the local authority has acted or what decision has been made or what outcome is proposed. The advocate must write a report outlining their concerns for the local authority. The local authority should convene a meeting with the advocate to consider the concerns and provide a written response to the advocate following the meeting.

Where the individual does not have capacity, or is not otherwise able, to challenge a decision, the advocate must challenge any decision where they believe the decision is inconsistent with the local authority’s duty to promote the individual’s wellbeing.

Where a person has been assisted and supported and nevertheless remains unable to make their own representations or their own decisions, the independent advocate must use what information they have, to make the representations on behalf of the person.

They must ‘advocate’ on their behalf, to put their case, to scrutinise the options, to question the plans if they do not appear to meet all eligible needs or do not meet them in a way that fits with the person’s wishes and feelings, or are not the least restrictive of the person’s life, and to challenge local authority decisions where necessary.

The ultimate goal of this representation is to secure a person’s rights, promote the individual’s wellbeing and ensure that their wishes are taken fully into account.

6. The Role of the Local Authority in Supporting the Advocate

An advocate’s duty is to support and represent a person who has substantial difficulty in engaging with the local authority processes, therefore the local authority must take into account any representations made by an advocate. A written response should be provided to a report from an advocate which raises concerns about how the local authority has acted or what decision has been made or what outcome is proposed. The local authority should understand that the advocate’s role incorporates ‘challenge’ on behalf of the individual.

The local authority is responsible for ensuring that the relevant people who work for the authority are aware of the advocacy service and the authority’s duty to provide such services (see Information and Advice). The local authority should consider including the identification and referral of those people likely to benefit from independent advocacy (during assessment, care and support planning, review and safeguarding) through the care and support services they may commission for instance domiciliary and residential care and support workers and agencies.

The local authority should take reasonable steps to assist the advocate in carrying out their role by informing other agencies that an advocate is supporting a person, and facilitating access to the person and to their records. The completion of an assessment and  care and support planning should allow time for the advocate to take into consideration the needs of the person family, friends or paid staff. They should keep the advocate informed of any developments and of the outcome of the assessment and the care and support plan.

The local authority may make reasonable requests of the advocate for information or for meetings both in relation to particular individuals and in relation to the advocate’s work more generally, and the independent advocate should comply with these.

7. Availability of Advocacy Services to People in the Area

Independent advocacy under the duty flowing from the Care Act is similar in many ways to independent advocacy under the Mental Capacity Act (MCA). Regulations have been designed to enable independent advocates to be able to carry out both roles. For both:

  • the independent advocate’s role is to support and represent people;
  • the independent advocate’s role is primarily to work with people who do not have anyone appropriate to support and represent them;
  • the independent advocates require a similar skill set;
  • regulations about the appointment and training of advocates are similar;
  • local authorities are under a duty to consider representations made by both independent advocates;
  • independent advocates will need to be well known and accessible;
  • independent advocates may challenge local authority decisions;
  • people who qualify for an Independent Mental Capacity Advocate (an IMCA) in relation to the care planning and care review – as that planning may result in an eligible change of accommodation decision – will (in nearly all cases) also qualify for independent advocacy under the Care Act. The provisions of the Care Act are however wider and apply to care planning irrespective of whether it may result in a change of accommodation decision. People for whom there is a power to instruct an IMCA in relation to care review will (in nearly all cases) also qualify for independent advocacy under the Care Act. The Care Act however creates a duty rather than a power in relation to advocacy and care reviews.

However, the duty to provide independent advocacy under the Care Act is broader and provides support to:

  • people who have capacity but who have substantial difficulty in being involved in the care and support ‘processes’;
  • people in relation to their assessment and/or care and support planning regardless of whether a change of accommodation is being considered for the person;
  • people in relation to the review of a care and/or support plan;
  • people in relation to safeguarding processes (though IMCAs may be involved if the authority has exercised its discretionary power under the MCA and appointed an IMCA if protective measures are being proposed for a person who lacks capacity, at the time to make the relevant decisions or understand their consequences);
  • carers who have substantial difficulty in engaging – whether or not they have capacity;
  • people for whom there is someone who is appropriate to consult for the purpose of best interests decisions under the Mental Capacity Act, but who is not able and / or willing to facilitate the person’s involvement in the local authority process;
  • adults who are subject to a safeguarding enquiry or SAR .

A person will be entitled to an advocate under the Care Act and then, as the process continues it will be identified that there is a duty to provide an advocate (IMCA) under the Mental Capacity Act. This will occur for example when during the process of assessment or care and support planning it is identified that a decision needs to be taken about the person’s long term accommodation.

It would be unhelpful to the individual and to the local authority for a new advocate to be appointed at that stage.

It would be better that the advocate who is appointed in the first instance is qualified to act under the Mental Capacity Act (as IMCAs) and the Care Act and that the commissioning arrangements enable this to occur.

Local authorities do not have to commission one organisation to provide all types of statutory and non-statutory advocacy. But there may be advantages of working with one organisation or working through one liaison point for a consortium of advocacy providers:

  • it is better for the person receiving the support;
  • it is easier for those carrying out assessment and care planning to work with one advocate per individual rather than two;
  • it is easier for the local authority to manage and monitor one contract rather than two.
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KEY POINTS

  • Under the Care Act, the local authority is responsible for setting up and maintaining – including review – information and advice services relating to care and support.
  • All adults – including carers – in the local authority area, who need information and advice about care and support, must be able to access the service.
  • The local authority must ensure that the information provided is of good quality, easily accessible and relevant.
  • The local authority should take opportunities to provide or signpost people to advice and information when people in need of care and support are in contact.

RELEVANT CHAPTERS

Promoting Wellbeing

Preventing, Reducing or Delaying Needs

RELEVANT INFORMATION

Chapter 3, Information and Advice, Care and Support Statutory Guidance (Department of Health and Social Care)

1. Introduction

Having access to good quality information and advice enables people, carers and families to take control of, and make well informed choices about, their care and support and how they will fund it. Not only does information and advice help to promote people’s wellbeing by increasing their ability to exercise choice and control, it is also a vital part of preventing or delaying people’s’ need for care and support.

The local authority has a legal duty to ‘establish and maintain a service for providing people in its area with information and advice relating to care and support for adults and support for carers’ (Care and Support Statutory Guidance: 3.2).

The local authority must ensure that information and advice services cover more than just basic information about care and support and cover a range of care and support related areas. The service should also address prevention of care and support needs, finances, health, housing, employment, what to do in cases of abuse or neglect of an adult and other areas where required.

Local authorities must also provide independent advocacy to assist the person’s involvement in the care and support assessment, planning and review processes where they would otherwise have substantial difficulty in understanding, retaining or using information given to them, or in communicating their views, wishes or feelings and there is nobody else who can offer this support (see Independent Advocacy chapter).

2. Complaints

See also the chapter on Complaints or Appeals in Relation to the Safeguarding Adults Process.

Information on how to complain should be available in a range of media and produced in different, user friendly formats for people with care and support needs, and their carers. They should also be advised they can nominate an advocate or representative to speak out and act on their behalf during the complaints process if they wish (see also Independent Advocacy chapter).

3. Adult Safeguarding

The local authority and its partners have a duty to help people with care and support needs, and who may be at risk of abuse or neglect as a result of those needs, keep safe. Everyone in the community should understand the importance of safeguarding and help keep people safe.

3.1 Raising concerns and keeping safe

The local authority must provide information and advice to the public about how to raise concerns about the safety or wellbeing of an adult who has care and support needs. It should also support public knowledge and awareness of different types of abuse and neglect and how to support people to keep safe. The information and advice provided must also cover who to tell when there are concerns about abuse or neglect and what will happen when such concerns are raised, including information on the roles and responsibilities of the Safeguarding Adults Partnership.

3.2 Commissioning and partner agencies

All commissioners or providers of services in the public, voluntary or private sectors should disseminate information about these multi-agency procedures. Staff should also be familiar with their own agency’s procedures in relation to how to respond if they suspect or encounter adults who are experiencing, or at risk of, abuse or neglect. This should be incorporated in staff manuals or handbooks, detailing terms and conditions of appointment and other employment procedures so that all individual staff members are aware of their responsibilities in relation to safeguarding adults. This information should emphasise that all those who express concern will be treated seriously and will receive a positive response from their managers.

4. Who are Information and Advice Services for?

The local authority is responsible for ensuring that all adults including carers who need for information and advice about care and support can access the service.

People who are likely to need information and advice include:

  • people wanting to plan for their future care and support needs;
  • people who may develop care and support needs, or whose current care and support needs may increase. Under the Care Act, local authorities are expected to take action to prevent, delay and / or reduce the care and support needs for these people (see Preventing, Reducing or Delaying Needs);
  • people who have not contacted the local authority for assessment but are likely to be in need of care and support. Local authorities are expected to take steps to identify such people and encourage them to come forward for an assessment of their needs (see also Preventing, Reducing or Delaying Needs);
  • people who become known to the local authority (through referral, including self-referral), at first contact where an assessment of their needs is being considered;
  • people who are assessed by the local authority as currently being in need of care and support. Advice and information must be offered to these people irrespective of whether they have been assessed as having eligible needs which the local authority must meet;
  • people who have eligible needs for care and support which the local authority is currently meeting (whether the local authority is paying for some, all or none of the costs of meeting those needs;
  • people whose care and support or support plans are being reviewed;
  • family members and carers of adults with care and support needs, (or those who are likely to develop care and support needs). Local authorities are expected to have regard to the importance of identifying carers and take action to reduce their needs for support;
  • people who may benefit from financial information and advice on matters concerning care and support. Local authorities must consider the importance of identifying these people, to help them understand the financial costs of their care and support and access independent financial information and advice including from regulated financial advisers and;
  • care and support staff who have contact with and provide information and advice as part of their jobs.

4.1 Carers

The local authority must recognise and respond to specific requirements that carers have for both general and personal information and advice. A carer’s need for information and advice may be distinct from information and advice for the person for whom they are caring. Their needs may be covered together, in a similar way to the local authority combining an assessment of a person needing care and support with a carer’s assessment, but may be more appropriately addressed separately. This may include:

  • breaks from caring;
  • the health and wellbeing of carers themselves;
  • caring and advice on wider family relationships;
  • carers’ financial and legal issues;
  • caring and employment;
  • caring and education; and
  • a carer’s need for advocacy.

5. Quality of Information and Advice

The local authority must ensure that there is an accessible information and advice service that meets the needs of its population. Information and advice must be open to everyone who would benefit from it.

The local authority should ensure that information supplied is clear, meaning it can be understood and acted on by those receiving it.

It should be accurate, up to date and consistent with other sources of information and advice. Staff providing information and advice within a local authority and other frontline staff should be aware of accessibility issues and be appropriately trained.

All reasonable efforts should be taken to ensure that the information and advice provide meets the adult’s requirements, is comprehensive and is given at an early stage.

The local authority must make sure that all relevant information is available to people so they can make the best informed decision in their particular circumstances. Leaving out or withholding information is not acceptable.

There will be some circumstances where impartial information and advice are particularly important and the local authority should consider when this may be best provided by an independent organisation, rather than by the local authority itself. This is particularly likely to be the case when people need advice about if, how and when to question or challenge the decisions of the local authority.

6. Content

The local authority must ensure that information and advice is available on:

  • how the local care and support system works locally – about how the system works. This includes the assessment process, safeguarding, eligibility, and review, complaints, appeals, independent advocacy, supporting individual wellbeing charging for care and support costs, national resources, planning for future care, planning for future lack of capacity;
  • how to access the care and support available locally;
  • the choice and types of care and support, and the choice of care providers available in the local area – including prevention and reablement services and wider services that support wellbeing;
  • how to access independent financial advice on matters relating to care and support;
  • how to raise concerns about the safety or wellbeing of an adult with care and support needs (and also consider how to do the same for a carer with support needs).

Depending on local circumstances, the service should also include, information and advice on:

  • housing and housing-related support options for those with care and support needs;
  • treatment and support for health conditions, including Continuing Health Care arrangements;
  • availability and quality of health services;
  • availability of services that may help people remain independent for longer such as home improvement agencies, handyperson or maintenance services;
  • availability of befriending services and other services to prevent social isolation;
  • availability of intermediate care entitlements such as aids and adaptations;
  • eligibility and applying for disability benefits and other types of benefits;
  • availability of employment support for disabled adults;
  • children’s social care services and transition to adult care and support;
  • availability of carers’ services and benefits;
  • sources of independent information, advice and advocacy;
  • the Court of Protection, Power of Attorney and becoming a Deputy;
  • the need to plan for future care costs;
  • practical help with planning to meet future or current care costs;
  • accessible ways and support to help people understand the different types of abuse and its prevention.

7. Opportunities to Provide Information and Advice

There are a number of direct opportunities that the local authority has to provide or signpost people to advice and information. These include:

  • at first point of contact with the local authority;
  • as part of a needs or carer’s assessment, including joint Continuing Healthcare assessments;
  • during a period of reablement;
  • around and following financial assessment;
  • when considering a financial commitment such as a deferred payment agreement or top‑up agreement;
  • during or following an adult safeguarding enquiry;
  • when considering take up of a personal budget and/or Direct Payment;
  • during the care and support planning process;
  • during the review of a person’s care and support plan;
  • when a person may be considering a move to another local authority area;
  • at points in transition, for example when people needing care or carers under 18 become adults and the systems for support may change.

The local authority and its partners must also use wider opportunities to provide targeted information and advice at key points in people’s contact with the care and support, health and other local services. These may be at key ‘trigger points’ during a person’s life such as:

  • contact with other local authority services;
  • bereavement;
  • hospital entry and/or discharge;
  • diagnosis of health conditions – such as dementia, stroke or an acquired impairment for example;
  • consideration or review of Continuing Healthcare arrangements;
  • take up of power of attorney;
  • applications to Court of Protection;
  • application for, or review of, disability benefits such as Attendance Allowance and Personal Independence Payments, and for Carers Allowance;
  • access to work interviews;
  • contact with local support groups, charities, or user-led organisations including carers’ groups and disabled persons’ organisations;
  • contact with or use of private care and support services, including homes care;
  • change or loss of housing;
  • contact with the criminal justice system;
  • admission to or release from prison;
  • ‘Guidance Guarantee’ in the Pensions Act 2014;
  • retirement.

8. Accessibility of Information and Advice

The local authority should ensure that products and materials (in all formats) are as accessible as possible for all potential users Websites should meet specific standards such as the Web Content Accessibility Guidelines and guidance set out in Making Your Service Accessible (UK Government).

Printed products should be produced to appropriate guidelines with important materials available in easy-read, large print and languages other than English. Telephone services or face to face services should be available to people who do not have access to the internet or who need services to be delivered in another way to meet their specific needs. Local authorities should be particularly aware of the needs of individuals with complex but relatively rare conditions, such as deafblindness, and those with hidden disabilities.

Under the Equality Act 2010, reasonable adjustments should be made to ensure that disabled people have equal access to information and advice services. Reasonable adjustments could include the provision of information in a range of accessible formats or the provision of help with communication support. When a person contacts the information and advice service, they should be asked what what is the best way for information to be given to them, and how they prefer to communicate.

Information and advice should be available in a range of formats, including:

  • face to face contact;
  • use of social and professional contacts;
  • community settings;
  • advice and advocacy services;
  • telephone;
  • mass communications, and targeted use of leaflets, posters and so on (for example in GP surgeries);
  • use of ‘free’ media such as newspaper, local radio stations, social media;
  • the local authority’s own and other appropriate internet websites, including support for the self-assessment of needs;
  • third party internet content and applications;
  • email.

Some groups in need of information and advice about care and support may have particular requirements. These include:

  • people with sensory impairments, such as visual impairment, deafblind and hearing impaired;
  • people who do not have English as a first language;
  • people who are socially isolated;
  • people whose disabilities limit their physical mobility;
  • people with learning disabilities;
  • people with mental health problems.

Some people, including those with dementia, may benefit from an independent person to help them to access information and advice. From the point of first contact with, or referral to, the local authority, the provision of independent advocacy to support involvement in assessment, planning and reviews should be considered (see Independent Advocacy chapter).

 

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CARE ACT 2014

Local authorities must actively promote wellbeing and independence, and intervene early to support adults and carers in order to prevent, delay or reduce needs wherever possible.

RELEVANT CHAPTERS

Promoting Wellbeing

Information and Advice

RELEVANT INFORMATION

Chapter 2, Preventing, Reducing or Delaying Needs, Care and Support Statutory Guidance (Department of Health and Social Care)

See also Preventing, Delaying or Reducing Needs case studies

March 2022: In Section 3, Intermediate Care and Reablement, information on the four models of intermediate care has been updated.

1. Introduction

It is critical to the vision in the Care Act 2014 that the care and support system works to actively promote wellbeing and independence, and does not just wait to respond when people reach a crisis point. To meet the challenges of the future, it will be vital that the care and support system intervenes early to support individuals, helps people retain or regain their skills and confidence, and prevents need or delays deterioration wherever possible.

There are many ways in which a local authority can achieve the aims of promoting wellbeing and independence and reducing dependency. The Care and Support Statutory Guidance sets out how local authorities should go about fulfilling their responsibilities, both individually and in partnership with other local organisations, communities, and people themselves.

The local authority’s responsibilities for prevention, reducing and delaying needs apply to all adults, including:

  • people who do not have any current needs for care and support;
  • adults with needs for care and support, whether their needs are eligible and / or met by the local authority or not;
  • carers, including those who may be about to take on a caring role or who do not currently have any needs for support, and those with needs for support which may not be being met by the local authority or other organisation.

The term ‘prevention’ or ‘preventative’ measures can cover many different types of support, services, facilities or other resources. There is no single definition for what constitutes preventative activity and this can range from wide scale, whole population measures aimed at promoting health, to more targeted, individual interventions aimed at improving skills or functioning for one person or a particular group or lessening the impact of caring on a carer’s health and wellbeing. In considering how to give effect to their responsibilities, local authorities should consider the range of options available, and how those different approaches could support the needs of their local communities.

‘Prevention’ is often broken down into three general approaches – primary, secondary and tertiary prevention – which are described in more detail below. The use of such terms is aimed to illustrate what type of services, facilities and resources could be considered, arranged and provided as part of a prevention service, as well as to whom and when such services could be provided or arranged. However, services can cut across any or all of these three general approaches and as such the examples provided under each approach are not to be seen as limited to that particular approach. Prevention should be seen as an ongoing consideration and not a single activity or intervention.

2. Prevent, Reduce, Delay

2.1 Prevent: primary prevention/ promoting wellbeing

These are aimed at individuals who have no current particular health or care and support needs. These are services, facilities or resources provided or arranged that may help an individual avoid developing needs for care and support, or help a carer avoid developing support needs by maintaining independence and good health and promoting wellbeing. They are generally universal (that is, available to all) services, which may include interventions and advice that:

  • provide universal access to good quality information;
  • support safer neighbourhoods;
  • promote healthy and active lifestyles;
  • reduce loneliness or isolation or;
  • encourage early discussions in families or groups about potential changes in the future, for example conversations about potential care arrangements or suitable accommodation should a family member become ill or disabled.

2.2 Reduce: secondary prevention/ early intervention

These are more targeted interventions aimed at individuals who have an increased risk of developing needs, where the provision of services, resources or facilities may help slow down or reduce any further deterioration or prevent other needs from developing. Some early support can help stop a person’s life tipping into crisis, for example helping someone with a learning disability with moderate needs manage their money, or a few hours support to help a family carer who is caring for their son or daughter with a learning disability and behaviour that challenges at home.

Early intervention could also include a fall prevention clinic, adaptations to housing to improve accessibility or provide greater assistance, handyman services, short term provision of wheelchairs or telecare services. In order to identify those individuals most likely to benefit from such targeted services, local authorities may undertake screening or case finding, for instance to identify individuals at risk of developing specific health conditions or experiencing certain events (such as strokes, or falls), or those that have needs for care and support which are not currently met by the local authority. Targeted interventions should also include approaches to identifying carers, including those who are taking on new caring responsibilities. Carers can also benefit from support to help them develop the knowledge and skills to care effectively and look after their own health and wellbeing.

2.3 Delay: tertiary prevention

These are interventions aimed at minimising the effect of disability or deterioration for people with established or complex health conditions, (including progressive conditions, such as dementia), supporting people to regain skills and manage or reduce need where possible. Tertiary prevention could include, for example the rehabilitation of people who are severely sight impaired. Local authorities must provide or arrange services, resources or facilities that maximise independence for those already with such needs, for example, interventions such as the provision of formal care such as meeting a person’s needs in their own home; rehabilitation / reablement services, for example community equipment services and adaptations; and the use of joint case management for people with complex needs.

Tertiary prevention services could also include helping improve the lives of carers by enabling them to continue to have a life of their own alongside caring, for example through respite care, peer support groups like dementia cafés, or emotional support or stress management classes which can provide essential opportunities to share learning and coping tips with others. This can help develop mechanisms to cope with stress associated with caring and help carers develop an awareness of their own physical and mental health needs.

Prevention is not a one off activity. For example, a change in the circumstances of an adult and/or carer may result in a change to the type of prevention activity that would be of benefit to them. Prevention can sometimes be seen as something that happens primarily at the time of (or very soon after) a diagnosis or assessment or when there has been a subsequent change in the person’s condition. Prevention services are, however, something that should always be considered. For example, at the end of life in relation to carers, prevention services could include the provision of pre-bereavement support.

3. Intermediate Care and Reablement

‘Intermediate care’ is a time limited, structured programme of care to assist a person to maintain or regain their ability to live independently at home. ‘Reablement’ is a type of intermediate care, which aims to help the person regain their capabilities and live independently in their own home.

There is a tendency for the terms ‘reablement’, ‘rehabilitation’ and ‘intermediate care’ to be used interchangeably.

There are four models of intermediate care (see Intermediate Care (SCIE):

  1. Bed-based services are provided in an acute hospital, community hospital, residential care home, nursing home, standalone intermediate care facility, independent sector facility, local authority facility or other bed-based settings.
  2. Community-based services provide assessment and interventions to people in their own home or a care home.
  3. Crisis response services are based in the community and are provided to people in their own home or a care home with the aim of avoiding hospital admissions.
  4. Reablement services are based in the community and provide assessment and interventions to people in their own home or a care home. These services aim to help people recover skills and confidence to live at home and maximise their independence.

The term ‘rehabilitation’ is sometimes used to describe a particular type of service designed to help a person regain or re-learn some capabilities where these capabilities have been lost due to illness or disease. Rehabilitation services can include provisions that help people attain independence and remain or return to their home and participate in their community, for example independent living skills and mobility training for people with visual impairment.

‘Intermediate care’ services are provided to people, usually older people, after they have left hospital or when they are at risk of being sent to hospital. Intermediate care is a programme of care provided for a limited period of time to assist a person to maintain or regain the ability to live independently – as such they provide a link between places such as hospitals and people’s homes, and between different areas of the health and care and support system – community services, hospitals, GPs and care and support.

To prevent needs emerging across health and care, integrated services should draw on a mixture of qualified health, care and support staff, working collaboratively to deliver prevention. This could involve, for instance, reaching beyond traditional health or care interventions to help people develop or regain the skills of independent living and active involvement in their local community.

4. Carers and Prevention

Carers play a significant role in preventing the needs for care and support for the people they care for, which is why it is important that local authorities consider preventing carers from developing needs for care and support themselves. There may be specific interventions for carers that prevent, reduce or delay the need for carers’ support. These interventions may differ from those for people without caring responsibilities. Examples of services, facilities or resources that could contribute to preventing, delaying or reducing the needs of carers may include but is not limited to those which help carers to:

  • care effectively and safely – both for themselves and the person they are supporting, for example timely interventions or advice on moving and handling safely or avoiding falls in the home, or training for carers to feel confident performing basic health care tasks;
  • look after their own physical and mental health and wellbeing, including developing coping mechanisms;
  • make use of IT and assistive technology;
  • make choices about their own lives, for example managing their caring role and paid employment;
  • find support and services available in their area;
  • access the advice, information and support they need including information and advice on welfare benefits, other financial information and entitlement to carers’ assessments.

As with the people they care for, the duty to prevent carers from developing needs for support is distinct from the duty to meet their eligible needs. While a person’s eligible needs may be met through universal preventative services, this will be an individual response following a needs or carers assessment. Local authorities cannot fulfil their universal prevention duty in relation to carers simply by meeting eligible needs, and nor would universal preventative services always be an appropriate way of meeting carers’ eligible needs.

5. The Focus of Prevention

5.1 Promoting wellbeing

The local authority must have regard to promote wellbeing and its principles (see Promoting Wellbeing chapter), and view an individual’s life holistically. This will mean considering care and support needs in the context of the person’s skills, ambitions, and priorities. This should include consideration of the role a person’s family or friends can play in helping the person to meet their goals. This is not creating or adding to their caring role but including them in an approach supporting the person to live as independently as possible for as long as possible. In regard to carers, the local authority should consider how they can be supported to look after their own health and wellbeing and to have a life of their own alongside their caring responsibilities.

As highlighted in the case study, where people live alone a person may not always have the support from family or friends because they may not live close by. For this group of people prevention needs to be considered through other means, such as the provision of community services and activities that would help support people to maintain an independent life.

5.2 Developing resilience and promoting individual strength

In developing and delivering preventative approaches to care and support, local authorities should ensure that individuals are not seen as passive recipients of support services, but are able to design care and support based around achievement of their goals. Local authorities should actively promote participation in providing interventions that are co-produced with individuals, families, friends, carers and the community. ‘Co-production’ is when an individual influences the support and services received, or when groups of people get together to influence the way that services are designed, commissioned and delivered. Such interventions can contribute to developing individual resilience and help promote self-reliance and independence, as well as ensuring that services reflect what the people who use them want.

Through the assessment process, an individual will have direct contact with a local authority. A good starting point for a discussion that helps develop resilience and promotes independence would be to ask: ‘what does a good life look like for you and your family and how can we work together to achieve it?’ Giving people choice and control over the support they may need and access to the right information enables people to stay as well as possible, maintain independence and caring roles for longer.

Social workers, occupational therapists, other professionals, service providers and commissioners who are effective at preventing, reducing, or delaying needs for care and support are likely to have a holistic picture of the individuals and families receiving support. This will include consideration of a person’s strengths and their informal support networks as well as their needs and the risks they face. This approach recognises the value in the resources of voluntary and community groups and the other resources of the local area.

5.3 Developing a local approach to preventative support

The local authority must provide or arrange for services, facilities or resources which would prevent, delay or reduce an individual’s needs for care and support, or the needs for support of carers. It should develop a clear, local approach to prevention which sets out how they plan to fulfil this responsibility, taking into account the different types and focus of preventative support as outlined above. Developing a local approach to preventative support is a responsibility wider than adult care and support alone, and should include the involvement, by way of example, of those responsible for public health, leisure, transport, and housing services which are relevant to the provision of care and support.

5.4 Working with other partners to focus on prevention

Whilst local authorities may choose to provide some types of preventative support themselves, others may be more effectively provided in partnership with other local partners (for example rehabilitation or falls clinics provided jointly with the local NHS), and further types may be best provided by other organisations (for example specialist housing providers or some carers’ services). A local authority’s commissioning strategy for prevention should consider the different commissioning routes available, and the benefits presented by each. This could include connecting to other key areas of local preventative activity outside care, including housing, planning and public health.

In developing a local approach to prevention, the local authority must take steps to identify and understand both the current and future demand for preventative support, and the supply in terms of services, facilities and other resources available.

Local authorities must consider the importance of identifying the services, facilities and resources that are already available in their area, which could support people to prevent, reduce or delay needs, and which could form part of the overall local approach to preventative activity. Understanding the breadth of available local resources will help the local authority to consider what gaps may remain, and what further steps it should itself take to promote the market or to put in place its own services.

Where the local authority does not provide such types of preventative support itself, it should have mechanisms in place for identifying existing and new services, maintaining contact with providers over time, and helping people to access them. Local approaches to prevention should be built on the resources of the local community, including local support networks and facilities provided by other partners and voluntary organisations.

Local authorities must promote diversity and quality in provision of care and support services, and ensure that a person has a variety of providers from which to choose. Considering the services, facilities and resources which contribute towards preventing or delaying the development of needs for care and support is a core element of fulfilling this responsibility. A local authority should engage local providers of care and support in all aspects of delivery and encourage providers to innovate and respond flexibly to develop interventions that contribute to preventing needs for care and support.

Local authorities should consider the number of people in its area with existing needs for care and support, as well as those at risk of developing needs in the future, and what can be done to prevent, delay or reduce those needs now and in the future. In doing so, a local authority should draw on existing analyses such as the Joint Strategic Needs Assessment, and work with other local partners such as the NHS and voluntary sector to develop a broader, shared understanding of current and future needs, and support integrated approaches to prevention.

In particular, local authorities must consider how to identify ‘unmet need’ – that is those people with needs which are not currently being met, whether by the local authority or anyone else. Understanding unmet need will be crucial to developing a longer-term approach to prevention that reflects the true needs of the local population. This assessment should also be shared with local partners, such as through the health and wellbeing board, to contribute to wider intelligence for local strategies. Preventative services, facilities or resources are often most effective when brought about through partnerships between different parts of the local authority and between other agencies and the community such as those people who are likely to use and benefit from these services.

Local authorities should consider how they can work with different partners to identify unmet needs for different groups and coordinate shared approaches to preventing or reducing such needs, for example working with the NHS to identify carers, and working with independent providers including housing providers and the voluntary sector, who can provide local insight into changing or emerging needs beyond eligibility for publicly funded care.

5.5 Working with other partners to focus on prevention

Developing and delivering local approaches to prevention, the local authority should consider how to align or integrate its approach with that of other local partners. Preventing needs will often be most effective when action is undertaken at a local level, with different organisations working together to understand how the actions of each may impact on the other.

Within the local authority, prevention of care and support needs is closely aligned to other local authority responsibilities in relation to public health, children’s services, and housing, for example. Across the local landscape, the role of other bodies including the local NHS (for example GPs, dentists, pharmacists, ophthalmologists etc.), welfare and benefits advisers (for example at Jobcentre Plus), the police, fire service, prisons in respect of those persons detained or released with care and support needs, service providers and others will also be important in developing a comprehensive approach.

Local authorities must ensure the integration of care and support provision, including prevention with health and health-related services, which include housing (see Integration, Cooperation and Partnerships chapter). This responsibility includes in particular a focus on integrating with partners to prevent, reduce or delay needs for care and support.

A local authority must cooperate with each of its relevant partners and the partners must cooperate with the local authority, for example, in relation to the provision of preventative services and the identification of carers, a local authority must cooperate with NHS bodies.

A local authority must also set up arrangements between its relevant partners and individual departments in relation to its care and support functions, which includes prevention. Relevant partners and individual departments include, but are not limited to, housing departments where, for example, housing services or officers may be well placed to identify people with dementia and their carers, and provide housing related support and/or in partnership with others, home from hospital services or ‘step up step down’ provision.

5.6 Identifying those who may benefit from preventative support

The local authority should put in place arrangements to identify and target those individuals who may benefit from particular types of preventative support. Helping people to access such types of support when they need it is likely to have a significant impact on their longer term health and wellbeing, as well as potentially reducing or delaying the need for ongoing care and support from the local authority.

In developing such approaches, the local authority should consider the different opportunities for coming into contact with people who may benefit, including where the first contact maybe with a professional outside the local authority for example, GPs, pharmacists or welfare and benefit advisers. There are a number of interactions and access points that could bring a person into contact with the local authority or a partner organisation and act as a trigger point for the local authority to consider whether the provision of a preventative service or some other step is appropriate. These may include:

  • initial contact through a customer services centre, whether by the person concerned or someone acting on their behalf;
  • contact with a GP, community nurses, housing officers or other professionals which leads to a referral to the local authority;
  • an assessment of needs or a carer’s assessment, which identifies the person may benefit from a preventative service or other type of local support.

Many people with low level care and support needs will approach the voluntary sector for advice in the first instance. Local authorities and the voluntary sector should work together on how it can share this information to gain a fuller picture of local need as possible. Authorities should bring data from these different sources together to stratify who in the community may need care and support in the future and what types of needs they are likely to have, and use this information to target their preventative services effectively.

Prevention should be a consistent focus for the local authority in undertaking their care and support functions. However, there may be key points in a person’s life or in the care and support process however, where a preventative intervention may be particularly appropriate or of benefit to the person. The local authority should consider circumstances which may help to identify people who may benefit from preventative support, for example:

  • bereavement;
  • hospital admission and or discharge;
  • people who have been recently admitted to or released from prison;
  • application for benefits such as Attendance Allowance, or Carer’s Allowance;
  • contact with/use of local support groups;
  • contact with/use of private care and support;
  • changes in housing.

A local authority must establish and maintain a service for providing people with information and advice relating to care and support (see Information and Advice chapter). In addition to any more targeted approaches to communicating with individuals who may benefit from preventative support, this service should include information and advice about preventative services, facilities or resources, so that anyone can find out about the types of support available locally that may meet their individual needs and circumstances, and how to access them.

5.7 Helping people access preventative support

A variety of different kinds of service, facilities or resources can be preventative and can help individuals live well and maintain their independence or caring roles for longer.

Local authorities should be innovative and develop an approach to prevention that meets the needs of their local population. A preventative approach requires a broad range of interventions, as one size will not fit all.

Where a local authority has put in place mechanisms for identifying people who may benefit from a type of preventative support, it should take steps to ensure that the person concerned understands the need for the particular measure, and is provided with further information and advice as necessary.

Contact with a person who is identified as being able to benefit from preventative support may lead to the local authority becoming aware that the person appears to have needs for care and support, including support as a carer. This appearance of need is likely to trigger a needs assessment or a carer’s assessment. However, where a local authority is not required to carry out such an assessment, it should nonetheless take steps to establish whether the person identified will benefit from the type of preventative support proposed.

Where a person is provided with any type of service or supported to access a facility or resource as a preventative measure, the local authority should also provide the person with information in relation to the measure undertaken. The local authority is not required to provide a care and support plan or a carer’s support plan where it provides prevention services only. It should, however, consider which aspects of a plan should be provided in these circumstances, and should provide such information as is necessary to enable the person to understand:

  • what needs the person has or may develop, and why the intervention or other action is proposed in their regard;
  • the expected outcomes for the action proposed, and any relevant timescale in which those outcomes are expected; and
  • what is proposed to take place at the end of the measure (for instance, whether an assessment of need or a carer’s assessment will be carried out at that point).

The person concerned must agree to the provision of any service or other step proposed by the local authority. Where the person refuses but continues to appear to have needs for care and support (or for support, in the case of a carer), the local authority must offer the individual an assessment.

6. Assessment of the Needs of Adults and Carers

In assessing whether an adult has any care and support needs or a carer has any needs for support, the local authority must consider whether the person concerned would benefit from the preventative services, facilities or resources provided by the local authority or which might otherwise be available in the community. This is regardless of whether, in fact, the adult or carer is assessed as having any care and support needs or support needs. As part of the assessment process, the local authority considers the capacity of the person to manage their needs or achieve the outcomes which matter to them, and allows for access to preventative support before a decision is made on whether the person has eligible needs.

As part of this process, the local authority should also take into account the person’s own capabilities, and the potential for improving their skills, as well as the role of any support from family, friends or others that could help them to achieve what they wish for from day-to-day life. This should not assume that others are willing or able to take up caring roles. Where it appears to the local authority that a carer may have needs for support (whether currently or in the future), a carer’s assessment must always be offered.

Children should not undertake inappropriate or excessive caring roles that may have an impact on their development. A young carer becomes vulnerable when their caring role risks impacting upon their emotional or physical wellbeing and their prospects in education and life. A local authority may become aware that a child is carrying out a caring role through an assessment or informed through family members or a school. A local authority should consider how supporting the adult with needs for care and support can prevent the young carer from under taking excessive or inappropriate care and support responsibilities. Where a young carer is identified, the local authority must undertake a young carer’s assessment under the Children Act 1989.

Considering the support from family, friends or others is important in taking a holistic approach to see the person in the context of their support networks and understanding how their needs may be prevented, reduced or delayed by others within the community, rather than by more formal services.

If a person is provided with care and support or support as a carer by the local authority, the authority must provide them with information and advice about what can be done to prevent, delay, or reduce their needs as part of their care and support plan or support plan. This should also include consideration of the person’s strengths and the support from other members of the family, friends or the community.

Regardless of whether or not a person is ultimately assessed as having either any needs at all or any needs which are to be met by the local authority, the authority must in any case provide information and advice in an accessible form, about what can be done to prevent, delay, or reduce development of their needs. This is to ensure that all people are provided with targeted, personalised information and advice that can support them to take steps to prevent or reduce their needs, connect more effectively with their local community, and delay the onset of greater needs to maximise their independence and quality of life. Where a person has some needs that are eligible, and also has some other needs that are not deemed to be eligible, the local authority must provide information and advice on services facilities or resources that would contribute to preventing, reducing or delaying the needs which are not eligible, and this should be aligned and be consistent with the care and support plan for the person with care needs, or support plan for the carer.

It is important that people receive information in a timely manner about the services or interventions that can help or contribute to preventing an escalation in needs for care and support. Supporting people’s access to the right information at the right time is a key element of a local authority’s responsibilities for prevention.

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CARE ACT 2014

Local authorities must promote wellbeing when carrying out any of their care and support functions in respect of an adult. This is sometimes referred to as ‘the wellbeing principle’ because it is a guiding principle that puts wellbeing at the heart of care and support. It also clarifies the arrangements for the role of principal social worker within local authorities.

RELEVANT CHAPTERS

Preventing, Reducing or Delaying Needs

Information and Advice

Making Safeguarding Personal

RELEVANT INFORMATION

Chapter 1, Promoting Wellbeing, Care and Support Statutory Guidance (Department of Health and Social Care)

This chapter was added to the APPP in July 2018.

1. Introduction

The core purpose of adult care and support is to help people to achieve the outcomes that matter to them in their life. Throughout the Care and Support Statutory Guidance, the different chapters set out how a local authority should go about performing its care and support responsibilities. Underpinning all of these individual ‘care and support functions’ (that is, any process, activity or broader responsibility that the local authority performs) is the need to ensure that doing so focuses on the needs and goals of the person concerned.

Local authorities must promote wellbeing when carrying out any of their care and support functions in respect of a person. This may sometimes be referred to as ‘the wellbeing principle’ because it is a guiding principle that puts wellbeing at the heart of care and support.

The wellbeing principle applies in all cases where a local authority is carrying out a care and support function, or making a decision, in relation to a person. For this reason it is referred to throughout this guidance. It applies equally to adults with care and support needs and their carers.

In some specific circumstances, it also applies to children, their carers and to young carers when they are subject to transition assessments (see Transition to Adult Care and Support).

2. Definition of Wellbeing

Wellbeing is a broad concept, and it is described as relating to the following areas in particular:

  • personal dignity (including treatment of the individual with respect);
  • physical and mental health and emotional wellbeing;
  • protection from abuse and neglect;
  • control by the individual over day to day life (including over care and support provided and the way it is provided);
  • participation in work, education, training or recreation;
  • social and economic wellbeing;
  • domestic, family and personal relationships;
  • suitability of living accommodation;
  • the individual’s contribution to society.

The individual aspects of wellbeing or outcomes above are those which are set out in the Care Act, and are most relevant to people with care and support needs and carers. There is no hierarchy, and all should be considered of equal importance when considering ‘wellbeing’ in the round.

3. Promoting Wellbeing

Promoting wellbeing involves actively seeking improvements in aspects of wellbeing set out above when carrying out a care and support function in relation to an individual at any stage of the process, from the provision of information and advice to reviewing a care and support plan. Wellbeing covers an intentionally broad range of the aspects of a person’s life and will encompass a wide variety of specific considerations depending on the individual.

A local authority can promote a person’s wellbeing in many ways. How this happens will depend on the circumstances, including the person’s needs, goals and wishes, and how these impact on their wellbeing. There is no set approach – a local authority should consider each case on its own merits, consider what the person wants to achieve, and how the action which the local authority is taking may affect the wellbeing of the individual.

The Act therefore signifies a shift from existing duties on local authorities to provide particular services, to the concept of ‘meeting needs’. This is the core legal entitlement for adults to care and support, establishing one clear and consistent set of duties and power for all people who need care and support.

The concept of meeting needs recognises that everyone’s needs are different and personal to them. Local authorities must consider how to meet each person’s specific needs rather than simply considering what service they will fit into. The concept of meeting needs also recognises that modern care and support can be provided in any number of ways, with new models emerging all the time, rather than the previous legislation which focuses primarily on traditional models of residential and domiciliary care.

Whenever a local authority carries out any care and support functions relating to an individual, it must act to promote wellbeing – and it should consider all of the aspects above in looking at how to meet a person’s needs and support them to achieve their desired outcomes. However, in individual cases, it is likely that some aspects of wellbeing will be more relevant to the person than others. For example, for some people the ability to engage in work or education will be a more important outcome than for others, and in these cases ‘promoting their wellbeing’ effectively may mean taking particular consideration of this aspect. Local authorities should adopt a flexible approach that allows for a focus on which aspects of wellbeing matter most to the individual concerned.

The principle of promoting wellbeing should be embedded through the local authority care and support system, but how it promotes wellbeing in practice will depend on the particular function being performed. During the assessment process, for instance, the local authority should explicitly consider the most relevant aspects of wellbeing to the individual concerned, and assess how their needs impact on them. Taking this approach will allow for the assessment to identify how care and support, or other services or resources in the local community, could help the person to achieve their outcomes. During care and support planning, when agreeing how needs are to be met, promoting the person’s wellbeing may mean making decisions about particular types or locations of care (for instance, to be closer to family). To give another example, the concept of wellbeing is very important when responding to someone who self-neglects, where it will be crucial to work alongside the person, understanding how their past experiences influence current behaviour. The duty to promote wellbeing applies equally to those who, for a variety of reasons, may be difficult to engage.

The wellbeing principle applies equally to those who do not have eligible needs but come into contact with the care and support system in some other way (for example, via an assessment that does not lead to ongoing care and support) as it does to those who go on to receive care and support and have an ongoing relationship with the local authority.

It should also inform delivery of universal services provided to all people in the local population, as well as being considered when meeting eligible needs. Although the wellbeing principle applies specifically when the local authority performs an activity or task or makes a decision in relation to a person, the principle should also be considered by the local authority when it undertakes broader, strategic functions, such as planning, which are not in relation to one individual. Wellbeing should, therefore, be seen as the common theme around which care and support is built at both local and national levels.

In addition there are a number of other key principles and standards to which the local authority must have regard to when carrying out the same activities or functions:

  1. The importance of beginning with the assumption that the individual is best placed to judge the individual’s wellbeing. Building on the principles of the Mental Capacity Act 2005, the local authority should assume that the person themselves knows best their own outcomes, goals and wellbeing. Local authorities should not make assumptions as to what matters most to the person; there should be an assumption that the individual is best placed to understand the impact of their condition/s on their outcomes and wellbeing.
  2. The individual’s views, wishes, feelings and beliefs. Considering the person’s views and wishes is critical to a person centred system. Local authorities should not ignore or downplay the importance of a person’s own opinions in relation to their life and their care. Where particular views, feelings or beliefs (including religious beliefs) impact on the choices that a person may wish to make about their care, these should be taken into account. This is especially important where a person has expressed views in the past, but no longer has capacity to make decisions themselves.
  3. The importance of preventing or delaying the development of needs for care and support and the importance of reducing needs that already exist. At every interaction with a person, a local authority should consider whether or how the person’s needs could be reduced or other needs could be delayed from arising. Effective interventions at the right time can stop needs from escalating, and help people maintain their independence for longer (see Preventing, Reducing or Delaying Needs).
  4. The need to ensure that decisions are made having regard to all the individual’s circumstances (and are not based only on their age or appearance, any condition they have, or any aspect of their behaviour which might lead others to make unjustified assumptions about their wellbeing). Local authorities should not make judgments based on preconceptions about the person’s circumstances, but should in every case work to understand their individual needs and goals.
  5. The importance of the individual participating as fully as possible. In decisions about them and being provided with the information and support necessary to enable the individual to participate. Care and support should be personal, and local authorities should not make decisions from which the person is excluded.
  6. The importance of achieving a balance between the individual’s wellbeing and that of any friends or relatives who are involved in caring for the individual. People should be considered in the context of their families and support networks, not just as isolated individuals with needs. Local authorities should take into account the impact of an individual’s need on those who support them, and take steps to help others access information or support.
  7. The need to protect people from abuse and neglect. In any activity which a local authority undertakes, it should consider how to ensure that the person is and remains protected from abuse or neglect. This is not confined only to safeguarding issues, but should be a general principle applied in every case including with those who self-neglect.
  8. The need to ensure that any restriction on the individual’s rights or freedom of action that is involved in the exercise of the function is kept to the minimum necessary. For achieving the purpose for which the function is being exercised. Where the local authority has to take actions which restrict rights or freedoms, they should ensure that the course followed is the least restrictive necessary. Concerns about self-neglect do not override this principle.

All of the matters listed above must be considered in relation to every individual, when a local authority carries out a function as described in this guidance. Considering these matters should lead to an approach that looks at a person’s life holistically, considering their needs in the context of their skills, ambitions, and priorities – as well as the other people in their life and how they can support the person in meeting the outcomes they want to achieve. The focus should be on supporting people to live as independently as possible for as long as possible.

As with promoting wellbeing, the factors above will vary in their relevance and application to individuals. For some people, spiritual or religious beliefs will be of great significance, and should be taken into particular account. Local authorities should consider how to apply these further principles on a case by case basis. This reflects the fact that every person is different and the matters of most importance to them will accordingly vary widely.

Neither these principles nor the requirement to promote wellbeing require the local authority to undertake any particular action; the steps it takes should depend entirely on the individual’s’ circumstances. The principles as a whole are not intended to specify the activities which should take placed. Instead, their purpose is to set common expectations for how the local authority should approach and engage with people.

4. Independent Living

Although not mentioned specifically in the way that wellbeing is defined, the concept of ‘independent living’ is a core part of the wellbeing principle. Section 1 of the Care Act includes matters such as individual’s control of their day to day life, suitability of living accommodation, contribution to society – and crucially, requires local authorities to consider each person’s views, wishes, feelings and beliefs.

The wellbeing principle is intended to cover the key components of independent living, as expressed in the UN Convention on the Rights of People with Disabilities (in particular, Article 19 of the Convention). Supporting people to live as independently as possible, for as long as possible, is a guiding principle of the Care Act. The language used in the Act is intended to be clearer, and focus on the outcomes that truly matter to people, rather than using the relatively abstract term ‘independent living’.

5. Wellbeing throughout the Care Act

Wellbeing cannot be achieved simply through crisis management; it must include a focus on delaying and preventing care and support needs, and supporting people to live as independently as possible for as long as possible.

Promoting wellbeing does not mean simply looking at a need that corresponds to a particular service. At the heart of the reformed system will be an assessment and planning process that is a genuine conversation about people’s needs for care and support and how meeting these can help them achieve the outcomes most important to them. Where someone is unable to fully participate in these conversations and has no one to help them, local authorities will arrange for an independent advocate.

In order to ensure these conversations look at people holistically, local authorities and their partners must focus on joining up around an individual, making the person the starting point for planning, rather than what services are provided by what particular agency. The chapter on Integration, Cooperation and Partnerships sets this out in more detail.

In particular, the Care Act is designed to work in partnership with the Children and Families Act 2014, which applies to 0 to 25 year old children and young people with SEN and Disabilities. In combination, the two Acts enable areas to prepare children and young people for adulthood from the earliest possible stage, including their transition to adult services. This is considered in more detail in the chapter Transition to Adult Care and Support.

Promoting wellbeing is not always about local authorities meeting needs directly. It will be just as important for them to put in place a system where people have the information they need to take control of their care and support and choose the options that are right for them. People will have an opportunity to request their local authority support in the form of a direct payment that they can then use to buy their own care and support using this information. The chapter on Information and Advice explains this in more detail.

Control also means the ability to move from one area to another or from children’s services to the adult system without fear of suddenly losing care and support. The Care Act ensures that people will be able to move to a different area without suddenly losing their care and support and provides clarity about who will be responsible for care and support in different situations. It also includes measures to help young people move to the adult care and support system, ensuring that no one finds themselves suddenly without care on turning 18.

It is not possible to promote wellbeing without establishing a basic foundation where people are safe and their care and support is on a secure footing. The Care Act puts in place a new framework for adult safeguarding and includes measures to guard against provider failure to ensure this is managed without disruption to services.

6. The Role of the Principal Social Worker in Care and Support

The purpose of this section of the guidance is to further clarify arrangements to have in place a designated principal social worker in adult care and support. Local authorities should make arrangements to have a qualified and registered social work professional practice lead in place to:

  • lead and oversee excellent social work practice;
  • support and develop arrangements for excellent practice;
  • lead the development of excellent social workers;
  • support effective social work supervision and decision making;
  • oversee quality assurance and improvement of social work practice;
  • advise the director of adult social services (DASS) and/or wider council in complex or controversial cases and on developing case or other law relating to social work practice;
  • function at the strategic level of the Professional Capabilities Framework (British Association of Social Workers).

6.1 The local authority role in supporting principal social workers

All local authorities should ensure principal social workers are given the credibility, authority and capacity to provide effective leadership and challenge, both at managerial and practitioner level and are given sufficient time to carry out their role. The principal social worker should also be visible across the organisation, from elected members and senior management, through to frontline social workers, people who use services and carers. Local authorities should therefore ensure that the role is located where it can have the most impact and profile.

Whatever arrangements are agreed locally, the principal social worker should maintain close contact with the DASS and frontline practitioners and engage in some direct practice. This can take several different forms, including direct casework, co-working, undertaking practice development sessions, mentoring, etc.

The integration of health and care and support will increasingly require social workers to lead, both in their teams and across professional boundaries, particularly in the context of safeguarding, mental health and mental capacity. Organisational models of social work have traditionally focused on managerial, as opposed to professional leadership – through their direct link to practice, principal social workers can ‘bridge the gap’ between professional and managerial responsibility, to influence the delivery and development of social work practice.

6.2 Principal social workers and safeguarding

Chapter 14 of the Care and Support Statutory Guidance endorses the: ‘Making Safeguarding Personal’ approach (see Making Safeguarding Personal). This represents a fundamental shift in social work practice in relation to safeguarding, with a focus on the person not the process. As the professional lead for social work, principal social workers should have a broad knowledge base on safeguarding and Making Safeguarding Personal and be confident in its application in their own and others’ work. Local authorities should, therefore, ensure that principal social workers lead on ensuring the quality and consistency of social work practice in fulfilling its safeguarding responsibilities. In particular they should have extensive knowledge of the legal and social work response options to specific cases and in general.

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RELEVANT GUIDANCE

An Introduction to the Care Act 2014 (SCIE Video)

March 2022: A link to a video produced by SCIE containing an introduction to the Care Act 2014 has been added. See above.

1. Introduction

The Care Act 2014 came into effect on 1st April 2015.

The Care Act unites a number of different acts into one single legislative framework for adults with care and support needs and their carers.

It also introduced duties and requirements of local authorities in a number of areas, including safeguarding adults. It provides, for the first time, a legislative framework for those working in adult safeguarding. Each local authority must:

  • make enquiries, or ensure others do so, if it believes an adult is experiencing or at risk of abuse or neglect;
  • set up a Safeguarding Adults Board (SAB);
  • arrange, where appropriate, for an independent advocate to represent and support an adult who is the subject of a safeguarding enquiry or safeguarding adults review (SAR) where the adult has ‘substantial difficulty’ in being involved in the process and where there is no other appropriate adult to help them (see the chapters on Independent Advocacy and Safeguarding Adult Reviews);
  • cooperate with each of its relevant partners in order to protect adults experiencing or at risk of abuse or neglect (see the Integration, Cooperation and Partnerships chapter).

2. Statutory Guidance

The Department of Health and Social Care issued the Care and Support Statutory Guidance for local authorities and partner agencies. From 1 April 2015 Chapter 14, Safeguarding, of the guidance replaced the previous statutory guidance No Secrets: Guidance on Developing and Implementing Multi-Agency Policies and Procedures to Protect Vulnerable Adults from Abuse (Department of Health, 2000).

3. Delegated Functions

See also Delegating Local Authority Functions

The Act does not allow certain functions to be delegated; safeguarding is one of those functions. Since the local authority must be one of the members of the Safeguarding Adult Partnership (SAP) and it must take the lead role in adult safeguarding, it may not delegate these statutory functions to another party.

4. Implications for Safeguarding Practice

The Care Act signalled a major shift in safeguarding practice with a move away from a process led culture, to a person centred approach which achieves the outcomes that people want. This should avoid the rigid application of a process and encourage practitioners to use the approach which best suits the adult involved.

As everyone has different preferences, histories, circumstances and lifestyles, it is not helpful to prescribe a single process that must be followed in all circumstances whenever a concern is raised.

5. Clauses of the Care Act

Below is a summary of the main clauses and whether these are new in legislation and / or policy, or consolidation or refresh of existing legislation.

Promoting wellbeing:
Creates a new statutory principle which applies to all functions under Part 1 (including care and support and safeguarding). Whenever a local authority makes a decision about an adult, they must promote the adult’s wellbeing.

Prevention:
The local authority is required to ensure provision of preventative services which help prevent / delay development of care and support needs, or reduce such needs (including carer support needs).

Integration:
There is a duty on the local authority to carry out care and support functions with aim of integrating services with those provided by NHS or other health-related services.

Information and advice:
Provides for an information and advice service to be available to all people in the local authority area regardless of eligible care needs.

Market shaping:
There is a general duty for the local authority to promote diversity and quality in the market of local care and support providers. The local authority must ensure a range of providers is available; shaped by demands of individuals, families and carers; services are of high quality and meet needs and preferences of those wanting to access services.

Cooperation general and specific:
There is a general duty to cooperate between the local authority and other relevant authorities which have functions relevant to care and support. It also supplements the general duty to cooperate with a specific duty where cooperation is needed for an individual who has needs for care and support.

How to meet needs:
This relates to adults who need care and carers; it is an illustration of how needs could be met to ensure flexibility.

Assessment:
This creates a single legal basis that requires the local authority to carry out an assessment, referred to as ‘needs assessment,’ where it appears an adult may have care and support needs. It also sets out what is to happen where adult or a carer refuses to have a needs or carer’s assessment.

Carers assessment:
Creates a single duty to assess carers. It requires the local authority to carry out an assessment (‘carer’s assessment’) where it appears a carer may have needs for support now or in future.

Assessment regulations:
This applies to needs assessment and carers assessment, allows for regulations to specify further detail about assessment process, including requiring assessment to be appropriate and proportionate, specialist assessments, self-assessment, and considering needs of whole family.

Eligibility:
This requires LAs to determine whether a person has eligible needs after a needs assessment or carer’s assessment has been completed. It provides for regulations which set out eligibility criteria, including minimum level of eligibility at which the local authority must meet care and support needs.

Charging:
This gives the local authority a general power to charge for certain types of care and support, at its discretion.

Cap on care costs:
This allows for a limit to be established on the amount an adult be required to pay towards costs of meeting eligible needs over their lifetime. It also prevents the local authority from charging to meet needs (other than daily living costs) once the limit has been reached. It provides for annual adjustments to the cap and adult’s accrued costs in line with level of average earnings.

Financial assessment:
This requires the local authority to undertake a financial assessment if they have chosen to charge for particular service under the power in the clause above.

Duty to meet needs:
This sets out circumstances establishing entitlement to public care and support for adults who need care. It describes conditions which must be met for duty on LAs to meet eligible needs.

Power to meet needs:
This provides broad power for the local authority to meet care and support needs in circumstances where a duty to meet needs (as above) does not arise.  It also allows for the local authority to temporarily bypass carrying out assessment of needs, where care and support is needed urgently.

Duty to meet carers’ needs:
This establishes legal obligation to meet carer’s needs for support.

Exception for immigration:
This applies to adults subject to immigration control. It provides that the local authority may not meet care and support needs of such adults solely because they are ‘destitute’ or physical effects or anticipated physical effects of being destitute. If needs have arisen for other reasons (for example a disability rather than solely destitution), prohibition does not apply.

Exception for provision of healthcare services:
In meeting an adult’s or carer’s needs, the local authority may not provide healthcare services which are NHS responsibilities.

Exception for housing:
This provides the local authority may not meet adult’s care and support needs by providing general housing, or anything else required under other legislation specified in regulations.

Steps to take:
This sets out steps the local authority must take after carrying out needs assessment or carer’s assessment (and financial assessment where relevant).

Care and support / support plan:
This details requirements for inclusion in care and support plans (assessed adult) / support plan (carer).

Personal budget:
This defines the personal budget as statement and sets out financial information to be included in statement.

Review of care and support / support plan:
This requires the local authority to keep plans under review generally, and to carry out assessment where satisfied the person’s circumstances have changed. The adult can also make reasonable request to have a review.

Independent personal budget:
This establishes the concept of independent personal budgets for adults with eligible needs, who choose not to have those needs met by the local authority. An independent budget is a statement recording how much of adult’s spending on care will count towards the cap.

Care account:
This requires the local authority to keep a care account for adults whose care costs are counted towards the costs cap.

Choice of accommodation:
This provides the framework and powers to set regulations regarding choice of accommodation and other matters.

Direct Payments:
This consolidates existing legislation on direct payments. People with capacity can request a direct payment and where they meet conditions set out the local authority must provide direct payments to meet their assessed eligible needs.

Deferred payments:
This allows regulations to state when the local authority may or must enter into Deferred Payment or loan agreement which will allow people to avoid selling property or possessions.

Continuity of care:
This sets out the duties the local authority is under when an individual, and potentially their carer, notifies the local authority of the intention to move to another local authority area. It applies when a second local authority has not carried out assessment before the person moves.  It requires the second local authority to provide services based on care and support plan provided by the first local authority. The second local authority must continue to provide this care until it has undertaken its own assessment.

Ordinary residence:
This helps the local authority identify a person’s Ordinary Residence for purposes of providing care and support. It also provides a mechanism for the local authority to reclaim money spent providing care and support to someone for whom they were not in fact responsible.

Adult safeguarding:
This sets out the local authority’s responsibility for adult safeguarding: responsibility to ensure enquiries into cases of abuse and neglect; establishment of Safeguarding Adults Boards on a statutory footing; Safeguarding Adults Reviews on a statutory footing and information sharing. It repeals section 47 of the 1948 National Assistance Act, which confers power to remove someone from his or her home in certain circumstances. Also updates the duty to protect property of adults admitted to hospital or residential care.

Human rights:
This requires all care and support providers regulated by the Care Quality Commission are required to act in a way which is compatible with the European Convention on Human Rights.

Provider failure:
This sets out the duty of English local authorities when providers fail. The local authority is required to temporarily meet the adult’s needs for care and support where they are no longer met as a result of provider failing.  It applies to all individuals present in the local authority area whose needs the local authority is not already meeting, that is self-funders and those whose services funded by another local authority.

Market oversight:
This introduces duties on the Care Quality Commission to assess financial sustainability of the most difficult to replace provider, and support the local authority to ensure continuity of care when providers fail.

Transition from childhood:
This places a duty on the local authority to assess a child, young carer or child’s carer before they turn 18 – if likely to have needs once they (or the child they care for) turn 18 – in order to help them plan and if will be ‘significant benefit’.

Advocacy:
Places a duty on the local authority in specified circumstances to arrange an independent advocate to facilitate involvement of an adult or carer who is subject of assessment, care or support planning or review.

Recovery of charges, transfer of assets:
This allows the local authority to recover as debt any sums owed, such as unpaid charges and interest.

Five-yearly review:
This requires the Secretary of State for Health to review how capped cost system is operating every five years. Review results can inform decisions on changing level of cap or other system parameters, for example general living costs.

Delayed discharges:
This sets out the process for notification of discharge when an adult has care needs, and a requirement for assessment. It amends the mandatory system of fining / reimbursement, where the local authority has not carried out its’ duties by the day of discharge, to discretionary.

Mental health after-care:
This clarifies after-care services provided under section 117 of the Mental Health Act 1983 to meet need arising from / related to mental disorder of person concerned.  It aims to reduce the likelihood of deterioration in a person’s mental disorder (and therefore reduce risk of hospital admission for treatment).

Prisoners:
This sets out responsibilities for provision of care and support for adult prisoners and people residing in approved premises (including bail accommodation). Such adults should have needs assessed by the local authority, and where they meet eligibility criteria services are provided by the local authority.  Prisoners’ non-eligible needs will be met by the prison.

Registers:
This requires the local authority to continue to establish and maintain register of sight impaired people. It also enables the local authority to establish and maintain a similar register of those who need care and support or are likely to do so in future.

Guidance:
This gives the Secretary of State power to issue guidance to local authorities on how to exercise functions under the Care Act, following consultation.

Delegation:
This provides a power for local authorities to authorise a third party to carry out certain care and support functions.

Cross border placements:
This makes provision for a person ordinarily resident in England, with care and support needs and requires residential accommodation to meet those needs, to be provided with accommodation in another part of UK. It also allows for such placements in England for people ordinarily resident in Wales, or whose care and support is provided under relevant Scottish or Northern Irish legislation. Also there are similar arrangements for cross border placements not involving England i.e. Wales / Scotland, Scotland / Northern Ireland and Northern Ireland / Wales.

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