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FREE BOOK CHAPTER: The Structure Of the Care Act 2014 (from 'Introduction to the Law of Community Care in England and Wales' by Alan Robinson)

06/10/17. 1. General principles – The Act set out to regularise the confusing collection of statutes which governed community care in England, which are described above in Part A. The Care Act 2014 regulates the provision of services in England (but not in Wales) from April 2015.

The Act also covers changes to the system of paying for care. Certain other changes to the system of payment were due to be implemented in April 2016, but this has now been postponed until April 2020, and this is described below. Meanwhile the system which now regulates payment, which still in large measure reflects the system in place before April 2015, as amended by the Act, is described in Chapter 4.

With limited exceptions, the Act repeals almost all of the principal adult care statutes, including the National Assistance Act 1948 and the NHS & Community Care Act 1990. Some 20 sets of new regulations were also issued. The Law Commission had recommended a Code of Practice, but instead there is statutory guidance. The guidance extends to some 500 pages.

The Statutory Guidance has already been updated on several occasions, most recently on 28 June 2017. It is now only available online, and can be consulted at https://www.gov.uk/guidance/care-and-support-statutory-guidance. The amendments have been necessary to take account of some of the issues that have arisen since the Act became law, especially the rules on ordinary residence as they are interpreted following the decision of the Supreme Court in R (Cornwall) v Secretary of State for Health [2015] UKSC 46. Ordinary residence is considered in Chapter 6 of Part D.

The full regime under the Act has not yet been implemented. The Government had indicated its intention of creating an appeals process, and consulted on a proposal to do so by regulation under section 72 of the Act. The consultation was completed on 30 March 2015, but is apparently still under consideration within Government. The other significant item which remains in limbo, as noted above, is the further amendment to the system of paying for care, in particular the care cap, for which see further below, especially in Chapter 3 of this Part.

One of the problems which has been identified with the Care Act 2014 is that it is concerned with ‘adults’, but that some of the legislation which it replaced, such as the Chronically Sick and Disabled Persons Act 1970, also covers people under 18, so that the repeal of that statute can only be partial. Many of the problems which had been identified as concerning the rights of children, young carers, and disabled children with parent carers have now been addressed, some in the Care Act 2014 and others in the Children and Families Act 2014. These measures are considered separately.

The Act is concerned with ‘adults’ and ‘carers’. As noted in Chapter 2, the previous definition of a carer was replaced by a new definition in the Care Act 2014.


2. The general duties of the local authority

The Act contains a series of general duties. The first, in section 1, is a duty to promote the ‘well-being’ of individuals, i.e. adults and carers. Well-being includes:

  • personal dignity, physical and mental health, and emotional well-being;

  • protection from abuse and neglect;

  • control over day-to-day life;

  • participation in work, education, training or recreation;

  • social and economic well-being;

  • domestic, family and personal relationships;

  • suitability of living accommodation; and

  • the individual’s contribution to society.

The term ‘choice’ does not appear.

In fulfilling this duty, the local authority is required to have regard to:

  • The assumption that an individual is best placed to judge his or her well-being;

  • The individual’s views, wishes, feelings and beliefs;

  • The taking into account of all the individual’s circumstances, and the need to make decisions that are not based on stereotyping individuals;

  • The importance of individuals participating as fully as possible in relevant decisions (including provision to them of necessary information and support);

  • 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’;

  • The need to protect people from abuse and neglect;

  • The need to ensure that restrictions on individual rights/freedoms be kept to the minimum necessary.

There are echoes here of the Mental Capacity Act 2005, although it was expressly decided that the Care Act 2014 should not contain a set of principles.

There is no specific reference to independent living, which is protected by Article 19 of the UN Convention on the Rights of Persons with Disabilities. However, the statutory guidance states:-

The wellbeing principle is intended to cover the key components of independent living, as expressed in the [Convention], (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.” (para 1.19).

Given the willingness of the courts to have regard to the European Convention (see for example Burnip v Birmingham City Council [2012] EWCA Civ 629, and R (Bracking) v SSWP [2013] EWCA Civ 1345), there may be a tendency to seek to use the Convention to secure rights under the Act. See also for example Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47.

There is now authority on the application of the well-being principle, which is discussed in Part D below, in particular the cases of R (Davey) v Oxfordshire County Council [2017] EWHC 354, and R (JF) v Merton LBC [2017] EWHC 1519 (Admin).

Under section 2, local authorities are under a general duty to provide a range of preventative services in order to prevent or delay the development of needs for care and support by individuals including carers, and to reduce those needs where they exist. This is unlikely to lead, at a time of financial strain on local authorities, to significant improvements in the preventative services available; but it may prove a more valuable provision in the future.

There is a duty under section 3 to promote integration with health provision where it would promote well-being and/or contribute to the prevention of the development of needs, and/or improve the quality of care.

Local authorities have an enhanced duty to ensure that adults in need and carers are provided with information about care and support arrangements under section 4. The requirement is not that the authority itself must make provision, but that it must ensure that suitable provision is in place. Face to face contact is considered preferable, and an online service alone is unlikely to meet the expectations.

One of the problems of the former system is the lack of availability of high quality providers, coupled with issues of the instability of some large providers, as exemplified by the collapse in 2011 of the independent company known as Southern Cross, which was at the time providing 752 care homes. There is therefore a range of provision in the Act, and in three sets of regulations, designed to address those problems by increasing diversity. This is to be found in section 5 of the Act, as well as in the Care and Support (Market Oversight Information) Regulations 2014 SI 2014/2822, and the Care and Support (Market Oversight Criteria) Regulations 2015 SI 2015/314. There is also provision for dealing with cross-border issues in the Care and Support (Cross-Border Placements and Business Failure: Temporary Duty) (Dispute Resolution) Regulations 2014 SI 2014/2843.

There are further duties to co-operate; section 6 creates a general duty on a local authority to co-operate with its “relevant partners” and section 7 creates a specific duty for a relevant partner to do so when requested by a local authority. “Relevant partners” include other local authorities, NHS bodies, the Crown, the police and probation services. 

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