The local authority department responsible for social care and safeguarding. Also commonly known as social services.
A local authority has a legal obligation to complete an assessment of someone’s care needs where they have reason to believe they have a need for care and support. The assessment will identify any eligible needs (e.g. help with washing and dressing) which the local authority then has a legal duty to meet (although depending on your savings, the local authority may not have an obligation to pay for the meeting of these needs). You can request an assessment regardless of your levels of savings, to help give you an understanding of care options.
A decision made about what medical treatment you would or would not want in the future if you were unable to make decisions because of illness or because you lacked the mental capacity to consent.
Advocacy is a process of supporting and enabling people who face difficulties in fully participating in decision-making processes, including decision about where they should live. Advocacy enables people to express their views, thoughts and concerns, secure their rights and obtain services they need.
An advocate is someone separate from the NHS or social services. An advocate is appointed to support and represent often vulnerable adults who need support in making sure their wishes and feelings are known when talking to health and care professionals. An independent advocate should work with you, without judging or giving a personal opinion. Under the Care Act 2014 and the Mental Capacity Act 2005 an individual has a legal right to an advocate, at no cost to them, under certain circumstances. There are different types of advocate:
- Independent Mental Health Advocates (IMHAs) - if you are being assessed or receiving treatment for a mental health condition under the Mental Health Act 1983.
- Independent Mental Capacity Advocates (IMCAs) - if you lack capacity to make certain decisions and there is no-one else (such as a family member or friend) who can support or represent you
- Care and Support Advocates (Care Act) - if you have ‘substantial difficulty’ in being involved in assessments and decisions about your care and don’t have an ‘appropriate adult’ to support you.
This is a service that your council may offer to manage your money for you if you are unable to do this yourself and have no family or friends who can help you. They may also ask a charity to do this instead. The appointee can receive benefits on your behalf and arrange the payment of your living costs.
This is help that may be offered if you are discharged from hospital but you don’t have support at home (eg. you live on your own). The service could be provided by a home care service or by volunteers who can assist you getting home from hospital and get settled in your home, preparing food and doing any necessary shopping for you. Also known as ‘reablement’.
Someone appointed under a Lasting Power of Attorney or Enduring Power of Attorney. An attorney has the legal authority to make decisions on behalf of the donor (the person who makes the Power of Attorney) subject to certain legal restrictions and any instructions in the document itself.
: See “Best Interest Decisions”
Best interests is a statutory principle set out in section 4 of the Mental Capacity Act 2005. It states that “Any act done or decision made on behalf of a person who lacks capacity must be done or made in their best interests”, by applying section 4 of the Mental Capacity Act 2005 which identifies the factors that should be considered. Section 4 is referred to as the Best Interest Checklist. An attorney should also apply the principles of the Mental Capacity Act 2005. The person doing the act or making the decision is referred to as the Decision Maker. In some circumstances there may be a formal best interest meeting where a Multi-disciplinary Team provide advice to the decision maker.
See “Best Interest Decisions”
An individual will only be eligible for financial assistance from their local authority when their capital is below £23,250. Between this figure and £14,250 capital is reduced by the local authority charging a tariff on it. When capital drops below the lower figure it is no longer considered as part of the financial assessment.
This is the main legislation for adult social care, supported by a number of Care Act Regulations and the Care and Support Statutory Guidance. It is far reaching, covering (amongst other things) local authority responsibilities in relation to care assessments, eligibility and care planning, paying for care, carers’ assessments, adult safeguarding and advocacy.
Care plans bring together all the information about the individual into a single written care plan. Care plans should focus on the goals of the patient. It is different from, for instance, an asthma action plan which would be one element of a whole care plan. It sets out what your care and support needs are, how they will be met and what services you will receive.
This is a weekly payment from the Government if you provide support to a partner, family friend or neighbour who could not manage without your help. You do not need to be related to the person or indeed live with them to be able to claim Carer’s Allowance. Eligibility depends on how many hours a week you provide care for, what benefits the person you care for receives and how much you earn.
The independent regulator of health and adult social care services in England and the body responsible for carrying out inspections.
Incorporates the care plan and daily records. The daily records show how the care providers are delivering the care plan and will be supported by a number of risk assessments. Detailed, accurate care records are fundamentally important to achieving success at a continuing healthcare assessment.
The local authority has a legal duty to assess a carer’s need for support in relation to their caring role. This can be done at the same time as an assessment of the person that is cared for, or separately. It should enable the carer to access information, advice and support to enable them to continue caring.
When an attorney starts to act under a Lasting Power of Attorney, they will need to provide certified copies of the Lasting Power of Attorney to various organisations. Solicitors can make certified copies for a charge, however the donor can also certify copies whilst they have mental capacity to do so, by following the Office of the Public Guardian’s guidance:Write the following text on the bottom of every page of the copy: “I certify this is a true and complete copy of the corresponding page of the original lasting power of attorney.”
On the final page of the copy, you must also write: “I certify this is a true and complete copy of the lasting power of attorney.”
You need to sign and date every page.
If you need to receive care in a care home, and the local authority will be contributing to the costs, the Care Act 2014 and supporting Regulations set out the rules relating to choice of accommodation. This is particularly contentious when a care home is more expensive than the local authority is willing to pay! See Top Ups for more information.
Clinical Commissioning Groups replaced Primary Care Trusts. One of their responsibilities is assessing and paying for continuing healthcare although they often outsource this work to Clinical Support Units (CSU’s) however, many CCGs have started to bring CHC work back in-house.
The first stage in the NHS Continuing Healthcare funding assessment process. There are 11 sections and each one attracts a score of A, B or C (A being the highest and C being the lowest). The aim is to get a general indication of your level of health needs. The threshold for passing to the next stage is quite low. See Continuing Healthcare
Non-means tested funding, from the NHS available when someone is assessed as having a ‘primary health need’. The first stage of the process is called the checklist, and if you ‘pass’ this stage, you go on to a full assessment called a Decision Support Tool assessment. This is completed with you and members of a Multi-Disciplinary Team (MDT) by looking at your health needs under a number of areas, called ‘domains’. A recommendation about whether you are eligible is then sent to a panel of health and social care professionals to be ratified. The funding is subject to ongoing reviews. See Contiuning Healthcare
An emergency law passed by law in March 2020 that gives the Government new powers to deal with the coronavirus pandemic. The new law covers social care, the NHS, schools, police, local councils, courts and funerals. The Act is in place for two years.
A document which helps to record evidence of an individual’s care needs to determine if they qualify for continuing healthcare funding. It consists of 12 ‘Health Need Domains’ which are systematically discussed in order to assist the Multi-disciplinary Team (MDT) to come to a decision as to whether or not an individual has a ‘primary health need’.
If you own your home and move permanently into a care home, you may be able to take out a Deferred Payment Agreement with the local authority. This is basically a loan from the local authority, set against your property which means that you do not need to sell your home immediately to pay for your care although interest will be applied to the loan. The care fees are usually repaid to the local authority when the property is sold. The Care Act 2014 has introduced some changes to Deferred Payment Agreements and we would always recommend that you seek legal advice when applying for this legally binding agreement.
Where someone intentionally reduces their capital or income (by, for example making gifts to family members) in order to reduce their personal contribution towards their care costs.
Where someone lacks mental capacity to decide where they should live, legal permission will usually be needed if their living arrangements amount to a deprivation of their liberty if they are under continuous supervision and control, and not free to leave, and this is called a DoLS authorisation. This is most commonly used to give authority to a care home regarding their residents, and the purpose is to ensure that no one is, in effect, placed in a care home or other restrictive environment against their will and not in their best interests. Challenges to a DOLS authorisation can be made by the individual or their representative (called a Relevant Persons Representative in the Court of Protection. The Government published a Mental Capacity (Amendment) Bill 2019 which will see DoLS replaced by the Liberty Protection Safeguards (LPS). These are planned to come into force in April 2022.
A person appointed by the Court of Protection, usually when someone has not appointed an attorney to act for them and has lost mental capacity to (for example) manage their finances. The deputy must follow the instructions and restrictions set out in the court order. Whilst it is preferable for someone who knows the individual to act as their Deputy, this is not always possible and in these circumstances, we are able to provide a professional deputy service. Debbie Anderson and Christopher Houghton act as professional deputies, appointed by the Court of Protection to manage the property and affairs for those individuals who lack mental capacity to do so themselves but have no relative or friend able to act on their behalf. They are supported by a dedicated Court of Protection team led by senior solicitor, Marie O’Malley.
Available to adults who receive financial support from their local authority to meet the costs of their care. Direct payments are designed to give the service user choice over how their care is arranged and who delivers it.
If you are well enough to leave hospital but still need some care and support, you may be able to go home with care provided in your home for a short period while discussions take place about your care and support needs in the longer term. Certain care homes have what are called “D2A beds” where your health and care needs can also be assessed.
There are 12 ‘care domains’ that assess the level of need at both the Checklist stage and Decision Support Tool assessment for Continuing Healthcare. The domains are: behaviour, cognition, psychological needs, communication, mobility, nutrition, continence, skin, breathing, drug therapies and pain management, altered states of consciousness and other significant care needs.
A person who makes a Lasting Power of Attorney.
Enduring Powers of Attorney have now been replaced by Lasting Powers of Attorney, but those signed before October 2007 are still valid. EPA’s deal solely with property and financial matters. Unlike Lasting Powers of Attorney they can be used without being registered, but must be registered if the donor loses mental capacity to deal with their affairs.
When a person is nearing the end of their life or their condition is deteriorating rapidly, a faster assessment for continuing health care can be received. NHS funding for the care can usually be put in place within 48 hours.
Attorneys have legal duties set out under the Mental Capacity Act 2005, but they also have fiduciary duties. These are effectively ‘rules of contact’ that emphasise when you are acting in a position of trust (such as attorney), you must for example, act solely for that person’s benefit.
Once you have been assessed by your local authority as having eligible care needs, you will then be asked to complete a financial assessment so they can work out the amount you have to contribute towards your care. If your savings are over £23,250 you will be regarded as totally self-funding and will not need to complete the financial assessment paperwork. You will be sent a written calculation, to check that all your income and expenses have been included.
A non-means tested weekly payment from the NHS to individuals who need nursing care and who live in a nursing home. This is often awarded after a Continuing Healthcare assessment, when someone is not eligible for fully funded care and is paid directly to the care home. You should check whether this amount is deducted from your weekly fee or payable in addition to it as it varies from nursing home to nursing home.
IMCA is a type of statutory advocacy introduced by the Mental Capacity Act 2005. The IMCA’s role is to support and represent a person who lacks capacity to make some important decisions.
IMHA is an independent advocate who is trained in the Mental Health Act 1983. The IMHA’s role is to support people to understand their rights under the Act and participate in decisions about their care and treatment. This is a service that should be offered to you if you are being treated in hospital or somewhere else under the Mental Health Act.
If you have been told that the NHS will not fund your continuing health care and you dispute this decision, then you are able to appeal to the Independent Review Panel. The panel is made up of people from outside your immediate area who have not looked at your case before and can investigate why the decision was made and whether it is right or wrong.
This is a type of court case where a judge reviews whether a decision made by a public body such as a local council had the right to make the decision and also whether the decision was made in the correct way. It does not rule on whether the right decision was made but rather whether the right process had been followed. Legal aid may be available in certain circumstances.
This is a term used by the Care Quality Commission to describe the questions it asks when it inspects care homes and other services to determine the quality of the services: Are they safe? Are they effective? Are they well run? Do they meet people’s needs?
A legal document where a donor (the person who makes the Lasting Power of Attorney) appoints an attorney (or attorneys) to make decisions on their behalf, when they do not have the mental capacity to do so for themselves in relation to health and welfare and/or property and financial matters. A property and finance LPA can also be used when the donor has capacity. An LPA cannot be used until it has been registered with the Office of the Public Guardian.
A term used in relation to the Mental Capacity Act. If a decision is to be made on behalf of someone who lacks the capacity to make the decision themselves, you should make sure that you don’t restrict their rights or freedoms any more than necessary.
This is a single point of contact in a local area where concerns can be raised about the safety of adults and children who may be at risk.
Someone’s ability to make their own choices and decisions. Under the Mental Capacity Act 2005 an individual should always be presumed to have capacity in the first instance. Mental capacity is time and issue specific and can fluctuate.
A comprehensive law that governs Lasting Powers of Attorneys and established the Court of Protection (amongst other things). It is perhaps most commonly known as providing the framework for those who have to act, or make decisions on behalf of people who lack mental capacity (see best interests). It is supported by a comprehensive Code of Practice, which attorneys must have regard to.
The Act is underpinned by five key principles that are an important framework for anyone working with adults with mental capacity difficulties:
- Start with a presumption of mental capacity,
- Take ‘all practical steps’ to enable someone to make a decision for themselves before you decide that they lack capacity,
- Do not label someone as ‘lacking capacity’ just because they make an unwise decision
- Any decision made on behalf of an individual who lacks mental capacity must be made in their best interests,
- Any best interest decision or action must give consideration to the least restrictive option.
A process, set out in the Mental Capacity Act 2005 for establishing whether someone has mental capacity to make a particular decision at a particular time.
Detailed (and easy to read) guidance on how to implement the Mental Capacity Act 2005.
A term most commonly used in relation to continuing healthcare assessments. A decision support tool assessment MUST be completed with a MDT present. A Multi-disciplinary team is a group of different professionals. In relation to continuing healthcare this usually means a nurse and a social worker. For best interest meetings it can also include occupational therapists, speech and language and consultants. The team brings together many different types of knowledge, skills and expertise.
The guidance for determining eligibility for continuing healthcare and thefunded nursing care contribution. It outlines clear principles and processes which should be followed by the responsible Clinical Commissioning Group and the Multi-disciplinary Team.
An organisation that provides advice and guidance to improve health and social care services in England and Wales.
Best described as the administrative arm of the Court of Protection, they also register Lasting Powers of Attorney, supervise deputies appointed by the Court, help attorneys and deputies carry out their duties and publish information and guidance about the Mental Capacity Act 2005.
An amount of money that is allocated to you by your local council to pay for care or support to meet your assessed needs. The money is funded by adult social care and you can take your personal budget as a direct payment or choose to have the council arrange services for you.
Money that is allocated to you to pay for your specific health needs by the NHS. It is based on your own individual care plan and sets out your goals and how your budget will help you reach them. It can be used to pay for therapies, personal care and equipment.
Under the Care Act 2014 an individual may be entitled to have their share of the value of their home disregarded from the local authority’s financial assessment if their spouse still lives there or other conditions apply. In addition to this, the local authority can apply 12, 26, 52 weeks or even 2 year property disregards, with the 12 week disregard being by far the most common. The property disregard starts from the day you first enter a care home and gives you time to make a decision about how to use your property to pay care fees. Depending on the circumstances, it may be mandatory to disregard the value of your property.
A service provided to help you remain independent after losing some of the skills for daily living as result of illness, accident or disability. This provides an opportunity to relearn or regain skills that could include personal care and practical tasks around the home. Your council may offer a reablement service for a limited period in your own home.
This is a service which enables care givers to have a break. It provides short term care for the person with care needs which can be in their own home or a residential setting. It could be for a few hours during the day or evening or a longer term break.
When a person is deprived of their liberty, the law calls them the ‘Relevant Person’. A ‘relative person’s representative’ is appointed if a person’s care has been authorised following a DoLS (Deprivation of Liberty Safeguarding) assessment. They are appointed during the best interests assessment and are often a family member, friend or other carer. If the person has no one suitable to take on this role, the local authority must appoint a paid representative. The paid representative will be a professional who will have regular contact with the person, represent and support them in all matters relating to the DoLS. This support is completely independent from the providers of the services they are receiving.
Safeguarding means protecting the health, wellbeing and human rights of adults at risk, enabling them to live safely, free from abuse and neglect. Safeguarding is everyone’s responsibility. Local authorities have a legal duty under the Care Act 2014 to make enquiries when they suspect an adult with care and support needs is experiencing or at risk of abuse or neglect. There are multi-agency responsibilities and local adult safeguarding boards to plan, monitor and develop safeguarding services. Abuse and neglect can come in many forms such as:
Physical abuse: This can include hitting, slapping, pushing, unnecessary restraint or misusing medications.
Domestic violence: This can include all types of abuse between family members or partners and ‘honour’ based violence.
Sexual abuse: This can include inappropriate touching, indecent exposure, rape, harassment or any sexual acts the adult has not consented to.
Psychological abuse: This can include emotional abuse, threats of harm, attempts to control, coercion, verbal abuse and bullying.
Financial or material abuse: This can include theft, fraud, coercion with regard to financial affairs.
Modern slavery: This includes forced labour and human trafficking.
Discriminatory abuse: This can include harassment or slurs due to someone’s race, gender, age, disability, sexual orientation, religion or gender identity.
Organisational abuse: This can include neglect and poor care practice within a care setting or in relation to care provided in one’s own home.
Neglect and acts of omission: Failure to act or ignoring medical, emotional or physical care needs.
Self-neglect: Neglecting to care for your own health, hygiene or surroundings.
If you have been compulsorily detained under section 3 of the Mental Health Act 1983 for treatment in a psychiatric hospital any “mental health aftercare” that you may need when you leave hospital should be provided free of charge. People are usually initially detained under section 2 of the Act and then transferred either to a section 3 order under the Mental Health Act OR a Deprivation of Liberty Safeguarding Authorisation under the Mental Capacity Act 2005. The distinction can have a significant effect on care costs.
Under the Care Act 2014 (and the Care and Support and Aftercare (Choice of Accommodation) Regulations 2014), when someone receives financial support from the local authority and chooses accommodation in a care home that charges more than the local authority is willing to pay, family members may be approached to pay a ‘third party top up’ to meet some of the costs. Top ups are a contentious area, particularly when someone has been privately paying for their care and has used up their capital. In certain, limited circumstances an individual can pay their own top up. ALWAYS seek advice before agreeing to any top up!