The Care Act 2014: personal budgets

The Care Act 2014 introduces personal budgets into law for the first time, setting out how much money is available to meet an individual’s care needs, how much they will need to contribute themselves and how that contribution has been calculated. The intention is to assist individuals in taking greater control over their lives, by making informed choices about their care.

A local authority should be able to integrate health and social care issues more effectively, thus ensuring that the individual requiring care gets the best possible care for their needs.

There are three key principles behind personal budgets:

  • Transparency – local authorities need to make people aware that personal budgets are an option
  • Timeliness – it is important to ascertain what an individual’s ‘indicative budget’ will be as soon as possible in order to plan for care that relies on the personal budget
  • Sufficiency – the money that is to be made available must be sufficient to cover any care needs that have been established and are being procured.

Once a personal budget has been established, it can be deployed in one of three ways:

  1. As a managed account held by the local authority – providing support in accordance with the wishes of the individual;
  2. As a managed account, managed by a third party ‘individual service fund’; or
  3. As a direct payment

Personal budgets can be complicated, but with the proper advice and support, they allow someone with care needs to have far more options and greater control over how those care needs will be met, while decreasing pressure on the more traditional care system.

For further information, please contact Heledd Wyn or a member of our Court of Protection team.

The Care Act 2014: the cost of care

Anyone who needs long term care is required to pay for that care, unless they fall within one of the limited ‘exceptions’ (such as NHS Continuing Health Care funding). The Care Act provides a single legal framework for charging for care and the assessment of assets that will need to be taken into account.

Currently, an individual who has capital in excess of £23,250 will pay for all of their care in full, until the level of capital has fallen to £14,250. At that point, the individual requiring care will pay £1 for every £250 of their capital – known as ‘tariff income’.

The fees charged by care homes can vary widely, depending on the area of the country and type of care home, and the options available may depend on availability, facilities and of course fees. According to Paying for Care, care home costs are, on average, £28,500 per year for a residential care home, or £37,500 per year if nursing is required. This is an important consideration for those requiring care as they may need to stay in a care home for some years. A research paper prepared by the LSE in 2011 “Length of stay in care homes” found that “around 27% of people lived for more than three years” in care.

It is therefore important that the individual’s assets are properly assessed to ensure that they are paying the correct amount for care. The local authority will carry out an assessment and will need to take into account all the needs of the individual. They will also consider whether there has been any deliberate deprivation of assets – such as giving away a considerable sum of money just prior to needing care, with a clear view to avoiding paying privately for care.

Once an assessment has taken place, the local authority must ensure that the individual needing care is given a genuine choice about available care which is within the budget of that individual. Importantly, the individual has an option to pay a ‘third party top up’ to secure a care home that is more expensive than that which is recommended by the local authority. Whichever option is taken, the local authority must be satisfied that the arrangements are affordable and sustainable.

Paying for care will be a reality for an increasing number of people and the cost of this should not be underestimated.

For further information please contact Heledd Wyn


The Care Act 2014: assessment and eligibility

One of the most important aspects of the Care Act is the assessment, which looks at who should receive care and support, and evaluates when a ‘trigger event’ happens.

The starting point is that the person who feels they may need care and assistance is put at the centre of the process. The assessment must establish what the needs of the individual are and the local authority must then consider whether the individual is eligible for care and support and, more specifically, what care and support is appropriate.

These assessments can be requested by a carer and are not limited to the individual needing care.

Local authorities must carry out such an assessment “for any adult with an appearance of need for care and support, regardless of whether or not the local authority thinks that the individual has eligible needs or of their financial situation”.

With regard to the carer, this assessment must be undertaken not only to look a the carer’s role, but also the sustainability of the role and whether the carer will require further assistance either now or in the future.

These requirements and obligations are a great help to those who want to plan for the future, and, rather than waiting for a ‘crisis’ to take place before seeking assistance, guidance and support can be requested before matters become too difficult. Again, the emphasis is on the individual and promoting their wellbeing. It is even possible for the assessment to be undertaken by the individual (with assistance) which can be a helpful approach.

It is paramount that any assessment undertaken must look at all aspects of an individual’s life (or their carer’s). The assessment must consider the prevention, reduction and delay of care needs as well as the overriding principle of wellbeing. An assessment must also look at whether the needs arise from a physical or mental impairment and the impact this has on the individual’s life.

Without an assessment, the local authority cannot determine whether an individual’s needs should be funded under the NHS Continuing Health Care Framework and so local authorities and Clinical Commissioning Groups are under an obligation to ensure that any assessment is done in a timely manner. This is an important aspect to consider when assessing eligibility for care as it may not be the responsibility of the local authority – rather the NHS.

For further information please contact Heledd Wyn

The Care Act 2014: preventing, reducing or delaying the need for care

Preventing the need for care is a very important part of the Care Act 2014. It ties in with the promotion of wellbeing, which is at the core of the Act, but if the requirement for care can be delayed, then the cost and dependency associated with care can also be delayed.

The Care & Support Statutory Guidance follows three key principles: prevention, reduction and delay. What does this mean in practice?

Prevention – for those with no current health or care support needs, organisations try to provide advice and early intervention solutions that will, for example, support and promote healthy and active lifestyles, or they may offer befriending services.

Reduction – more targeted interventions might include making adaptions to the home which would improve accessibility and promote living independently for longer.

Delay – some interventions may be taken in order to minimise the impact of disability or mental or physical deterioration. This might include providing  respite care for affected individuals or peer support groups for carers.

Local authorities have an obligation to identify services in their area to assist with these aims and may include a voluntary group or a charity.

A case study referred to in the Care & Support Statutory Guidance refers to Link Age which is a charity that “works with people 55+ and local communities to facilitate inspiring social activities that enrich lives, reduce isolation and loneliness and promote active participation”. This is a clear example of prevention and reduction being put into practice.

The guidance states, very clearly that “prevention should be a consistent focus for local authorities in undertaking their care and support functions”. Their duty extends to establishing and maintaining a  service for providing people with information and advice as to where assistance may be obtained, thus meeting their obligations under the Act. However, it is important to note that not all these services will be free and that charges may be made where appropriate. This does not apply to intermediate care and reablement of up to six weeks, or adaptions to the home, which must be provided up to the value of £1000. These latter two aspects can sometimes be overlooked, but can be vital in assisting a vulnerable person to delay the need for more involved care until later.

For more information please contact Heledd Wyn.

The Care Act 2014: a brave new world

The Care Act 2014 (‘the Act’): a few short words, but an Act that was designed to have a big impact on the way care is provided. The Act consolidates what was a considerable raft of legislation into one statute, but it is supplemented by a very weighty (nearly 500 pages) ‘Care and Support Statutory Guidance’ (CASSG) to assist those making decisions under the Act.

As is common in recent legislation (such as the Children Act 1989 and the Mental Capacity Act 2005), the first section (s1) of the Act provides an overriding principle. In the Children Act the welfare of the child is paramount and the Mental Capacity Act refers to ‘best interests’; in the Care Act ‘wellbeing’ is the overriding principle.

Wellbeing is a very wide concept, but it is very important to those implementing the provision of the Act. Wellbeing permeates the entire Act and should be promoted and managed at all stages.

CASSG clearly states that “wellbeing cannot be achieved simply through crisis management”. This has to be correct and encourages people to consider their likely care needs well in advance of them becoming imminent or urgent. This principle applies to anyone who is vulnerable, frail, elderly or simply interested in managing their future.  An holistic approach should include all agencies involved in the care of an individual working together, so that the individual is put at the centre of any decision making process.

It is heartening to read that this is an overarching aim of the Act and it will be interesting to see how it will be implemented in practice.

For further information about elderly care issues please contact Heledd Wyn.

Court of Protection: Deprivation of Liberty Safeguarding

Driving to work this morning, there was a discussion on the Radio 4 Today  programme about the Court of Protection (for anyone who wants to listen to the piece again, it was at 0730 on The piece centred on Deprivation of Liberty Safeguarding (DoLS). Regular readers of this blog and our Twitter account @CWCoP will know that this is an area where we have a special interest with our Jess Flanagan taking the lead in this important field. The issues discussed on the programme surrounded the case of AJ (Deprivation of Liberty Safeguards) [2015] EWCOP 5.  AJ was declared to have been deprived of her liberty – but owing to delays in the system, by the time that the Court had made its order, her health had deteriorated to a point where she was unable to return home – despite that being her dearly held wish.

Our friends at 39 Essex Chambers  discussed this case in their March newsletter and Victoria Butler-Cole was on Radio 4 this morning discussing the Mental Capacity Act, health and welfare and DoLS. This is an emotive area and one that is in the press a great deal at the moment. Sir James Munby the president of the Family Division is on record stating that ‘systemic failures’ in Court of Protection procedures are creating delays and that an overhaul is needed. There is a lot going on in the Court and we are working hard as a team to keep up to date with the changes and the procedures.

We are also firm advocates of preparing for incapacity. On this morning’s programme Victoria Butler-Cole highlighted that people can prepare Health & Welfare Powers of Attorney which would assist tremendously in these cases.

Here at Clarke Willmott, we have experience in all aspects of the Mental Capacity Act – from assisting people with DoLS, representation in Court and of course – planning ahead – whether for health & welfare or property & finance.

For further advice about mental capacity or elderly care issues, please contact Heledd Wyn or a member of our Court of Protection team.


Clarke Willmott Court of Protection team: supporting law making in Japan

On 22 April 2015 Clarke Willmott LLP will host a meeting between a delegation of lawyers from the Japan Legal Support Centre and organisations from Bristol who provide services in connection with the Mental Capacity Act 2005.

Vulnerable adults in Japan currently have little protection in respect of making welfare decisions, but the Japanese government is in the process of amending its legislation. The delegates will be gathering information about the operation of the Mental Capacity Act in England and Wales and their findings will be used in the formulation of the new Japanese legislation.

The meeting on Wednesday will involve representatives from Bristol Mind, staff from the National Carers Network and lawyers from Clarke Willmott LLP and Foot Anstey.

The visit has been arranged between the delegation leader, Toshihiko Mizushima who is an Attorney at Law in Japan, and Tom Hore who is Director at Bristol Mind. Bristol Mind is one of the leading mental health organisations in Bristol supporting over 2,500 people every year. Bristol Mind was recommended to Mr Mizushima as an example of excellent practice and because they run the Independent Mental Capacity Advocate (IMCA) service in Bristol.

Mr Mizushima first visited Bristol Mind in January and commented “I realised that IMCAs in Bristol Mind have excellent communication skill and great passion”. His impressions and Bristol Mind’s ability to connect him with other organisations led him to decide to bring the national delegation to Bristol.

Tom Hore said “We feel very proud to have been chosen to meet with the delegation and to contribute towards the creation of the legal framework of another country; it’s a great testament to the expertise of our staff and our organisation”.

The Mental Capacity Act 2005 was created with the aim of empowering and protecting people who may not be able to make some decisions for themselves, particularly about their health or accommodation. IMCAs support people who are unable to make these decisions and have no friends or family to support them. The IMCA service is funded by Bristol City Council and in 2014 IMCAs from Bristol Mind worked with 460 people in the Bristol area.

As well as hosting the event, Clarke Willmott will be answering questions about how we advise our clients and the legal framework of the Mental Capacity Act 2005. It is a privilege for our Court of Protection team to be involved in the discussions with the Japanese delegation and provide information to assist vulnerable people in Japan.

The Care Act 2014: the adult safeguarding system is about to change

The Care Act 2014 comes into force tomorrow. Over the next few weeks we will be posting some of our thoughts about the provisions of the Act and our experience of working with people who will benefit from the legislation, particularly in respect of safeguarding vulnerable adults.

First, we consider what was wrong with the current system and how the Care Act 2014 (the Care Act) will change things.

One of the main issues with the current system is that it is guidance only and difficult to ensure that an authority does what you think it should. Furthermore, that guidance, ‘No Secrets’, was published in 2000 and has not particularly caught up with the way the Adult Social Care system has evolved over the past 15 years. Currently, each Authority is able to make it’s own policy in respect of safeguarding, and most authorities now have comprehensive policies which ensure that agencies such as health, social, police and education (if appropriate) all work together in a particular geographical area.

Although the current system creates responsibility for the provision of services, it can be very complicated and focuses on the people and organisations who provide the services, rather than the individual who needs to receive the care. The vulnerable adult, whether or not they have capacity to make decisions about any alleged abuse, may be excluded without good reason from the process that will make safeguarding decisions about them. An individual’s capacity to make decisions about the abuse is too often not considered and if they do have capacity to make decisions to consent to the abuse and/or put up with it this is rarely considered as an important factor in the process.

Under the Care Act, there is first and foremost a principle of ‘well-being’ of the individual and the focus is changed so that the person is always at the centre of the decision making process. Local authorities now have a duty to meet the specific needs of the individual, rather than just providing services.

The Care Act brings safeguarding into a statutory framework and away from guidance and policy, but importantly, the new system is predicated on the individual with needs requiring care or support. It doesn’t matter if they are ‘eligible’ needs, ie they can be low or moderate needs as well as Substantial or Critical, which will result in service provision to meet those needs. This doesn’t really change much from the current system, as any alert would be considered – but only those with eligible needs, or those who lacked capacity would benefit from action that the Local Authorities could take on their behalf.

I cannot see how this will be that different with the Care Act, because the Act still permits Local Authorities to meet assessed and eligible needs; and the guidance is that those are needs which are substantial, or critical.

What might make some difference is the action that the newly constructed Safeguarding Adults Boards (SAB) can take when faced with a situation that requires review and these may assist in driving forward standards and the quality of working together to safeguard adults. However, other than this, the Act is pretty silent on safeguarding. It hasn’t created new powers but the Act itself (being clearer and more person centred) might assist professionals to use the legal framework available to protect people from harm, and empower those who need it.

For example, individuals who might not understand, or be able to weigh up, retain or communicate any decision relating to care planning, now effectively have a statutory right to have access to an advocate to support them through the process. There is already a statutory right to an Independent Mental Capacity Advocate in safeguarding cases where the person lacks capacity, but this doesn’t help those who are said to have family members who can adequately speak for them; or for those who don’t lack capacity, but still struggle to engage with or understand the process.

For me, this is likely to be one of the key changes that the Care Act will bring about that might actually support the individual at the heart of it all more effectively than any legal measure that could be put in place.

For more information please contact Jess Flanagan or a member of our Court of Protection team.

Dementia and mental capacity: an international dilemma

One day last week I attended two separate events concerning capacity and how this is a growing problem – one with cross-border implications.

The STEP Mental Capacity Special Interest Group (SIG) is comprised of practitioners from around the globe who have an interest in capacity issues. We discussed problems facing our colleagues in such diverse jurisdictions as Australia and the Cayman Islands where the approach to incapacity is very different. The aim of the group is to raise awareness of international issues surrounding those with incapacity and with a view to achieving best practice.

In England and Wales we have a very clear guide in the form of the Mental Capacity Act 2005 (MCA) and those of you who read this blog will be aware of the increasing number of cases that are being reported by the Court of Protection.

These cases are as diverse as where people should live Essex County Council v RF & Ors (Deprivation of Liberty and damage) [2015] EWCOP 1 and MASM v MMAM & Ors [2015] EWCOP 3 (29 January 2015), whether they should be sterilised against their wishes The Mental Health Trust and others v DD and another [2015] EWCOP 4 and what authority people have to make gifts as attorneys or deputies Re Gladys Meek [2014] EWCOP 1, [2014].

These are monumental decisions, but particularly so when it is considered that these cases have only been brought to Court because an individual lacks the capacity to make the decision themselves. I anticipate that we will be seeing more of these types of cases in the coming years as people’s awareness of mental capacity grows and there is greater understanding of how the MCA impacts upon the lives of the individual.

As a solicitor, I am aware of these issues and how the law has an impact on our lives as I have access to the cases and I work with some highly qualified and experienced practitioners in this field – but I’m not sure how the cases are followed or understood in the wider world.

On the same day I attended a presentation at the RSA about the Dementia Timebomb. Professor June Andrews, director of Dementia Services at Stirling University (in Scotland, which is a different legal jurisdiction to England and Wales), spoke to a diverse audience of medical professionals, legal professionals, charities and interested parties about the economic and social impact of dementia. Professor Andrews said that even as a professional in the area, she finds the information baffling and difficult to sift though. So how do those lacking capacity cope? In her book ‘Dementia: The One-Stop Guide’ Professor Andrews gives some advice and sets out the resources available for families, professionals and those living with Dementia.

The audience were highly engaged – tweeting the event live using the hashtag #RSADementia and asking questions. I had an opportunity to raise the question of engagement and was pleased to hear about the Dementia Festival of Ideas “a year-long celebration of the most stimulating thinking, writing and discussion about what dementia means in 2015”.

Hopefully, these events will help to engage the public about issues surrounding capacity and assist with the confusion that can result when families are affected by incapacity.

I am mindful that incapacity has an international reach and does not limit itself to legal jurisdictions where the Mental Capacity Act 2005 is in force. Are the issues the same in Europe and Asia? In a world where we are ever more international in our approach, our lives, much like dementia, do not sit within neat geographical boundaries so I wonder whether we will, in the future, face an international Dementia Timebomb with global impact.

For further information please contact Heledd Wyn or a member of the Court of Protection team.

Court of Protection: an exceptional interference with individual rights in order to protect life

A recent Court Of Protection case (The Mental Health Trust and others v DD and another [2015] EWCOP 4) illustrates how the Court will apply the relevant provisions of the Mental Capacity Act 2005 (MCA) and of the European Convention on Human Rights (ECHR) in determining whether a person has capacity, and in deciding what action should be taken in a person’s best interests if he or she is found not to have the capacity to make a decision about a particular course of action.

The case in question concerned a 36 year old woman, DD, who had been diagnosed with Autistic Spectrum Disorder and mild to borderline learning difficulties. DD had given birth to six children all of whom had been placed with permanent substitute carers and with whom she had no ongoing contact. DD was in a long-term relationship with BC and any future pregnancy for DD was regarded as being “highly likely to lead to her death” due to medical reasons, DD’s habit of concealing her pregnancies and her and BC’s resistance to medical and professional support.

The issues

Cobb J was asked to determine DD’s capacity to litigate, her capacity to make decisions about long-term contraception or sterilisation and, if she was found not to have capacity, to decide whether it was in DD’s best interests to receive long-term contraception or sterilisation. It was noted by Cobb J that the relief applied for represented exceptional interference with DD’s rights under Article 8 of the ECHR to respect for her private life.

It was considered by those caring for DD that the best options were either long-term contraception, in particular an Inter-Uterine Device (IUD), or sterilisation. DD had been willing to use contraception in the past but had always rejected an IUD. Cobb J emphasised that the decision made by him would be decision-specific and, in accordance with section 1 MCA, would be in DD’s best interests.

The court’s decision

Under section 2 MCA, a person is deemed to lack capacity if he is unable to make a decision because of “an impairment of, or a disturbance in the functioning of the mind or brain”. After considering the available medical evidence, and in particular the medical opinion that DD’s autism caused her to have an “extremely rigid style of thinking with difficulty in cognitive flexibility,” Cobb J decided that DD’s autism amounted to such an impairment or disturbance.

Section 3 MCA provides that a person is unable to make a decision for the purposes of section 2 if he or she is unable to understand the information presented in respect of that decision, to retain it or to use or weigh that information as part of the decision- making process. As DD was felt unable to use or weigh legal advice to make decisions with regard to litigation it was decided that she had no capacity to litigate.

Cobb J also found that, although DD had a basic understanding of the purpose of contraception and the reproductive process, she did not understand the medical importance for her of not having a further pregnancy. Moreover, it was decided that DD was unable to use or weigh information with regard to contraception or to hold the negative and positive factors of each potential form of contraception in mind. Cobb J found that, pursuant to section 1 MCA, all practicable steps to help DD make a decision ,and to engage in the decision making process, had been taken but without success. On the basis of the evidence before him Cobb J therefore decided that DD did not have capacity to make decisions about contraception and sterilisation.

DD’s best interests

Having decided that DD lacked the requisite capacity, the court then had to make a decision on DD’s behalf about her long-term contraception which decision, in accordance with section 1(5) MCA must be in her best interests.

The court acknowledged that DD’s best interests and her human rights, particularly her right to a private life under the Article 8 of the ECHR were “inextricably bound up.” Cobb J stated that he could only interfere with those rights “if…..satisfied that [it was] necessary and in accordance with the law for the protection of DD’s health.” The health implications were clear from the fact that the clinical risk of a fatal outcome to a further pregnancy was assessed as being at least 30% or as high as 50%. After a review of the available options, Cobb J stated that he felt, in accordance with section 1(6) of the MCA, that sterilisation was the least restrictive of those options as it freed DD from continual intrusive medical intervention.

On the balance sheet approach, the court found that the factors in favour of sterilisation outweighed those in favour of an IUD considerably. There were two factors of “magnetic” importance which were that future pregnancies posed a high risk to DD’s life, and sterilisation would allow her to be left alone, as she fervently wished, free from future medical intrusion.

Consequently, the court authorised sterilisation with one predominant purpose “to preserve DD’s life”. It also made orders that DD should be forcibly removed from her home, and restrained, if this were necessary to carry out the procedure.


This decision is bound to attract attention because of the serious nature of the decision made on DD’s behalf, to remove permanently the fertility of a woman of child-bearing age.  Cobb J was scrupulous in his application of the relevant provisions of the MCA and the ECHR and clearly acknowledged the import of the decision that was being made on DD’s behalf. He acknowledged the fact that strenuous efforts had been made by the professionals involved to engage DD in the decision-making process, sadly without success.

The basis of the court’s decision was clearly to preserve DD’s life and it was emphasised that there was no social purpose behind the decision. By comparison, if a court application had been made in respect of DD’s partner, who had significant learning disabilities, then it is highly unlikely that a similar decision would have been made as, with no risk to his life, such a decision could not be seen to be in his best interests.

For further information please contact Joanna Burton or a member of our Court of Protection team.