Duty of care

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AliceW

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Aug 15, 2022
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Hi everyone,

Our knowledge services recently reviewed our duty of care thread. A big thank you to the knowledge services team and we hope you find this useful.

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Sometimes people say that local authorities (LA)(adult social services departments) in England have a ‘duty of care,’ but what do they mean? To understand whether this means a duty to actually provide care, it may help to elaborate a little.

The Care Act in England clearly states that the LA has a duty to assess if someone appears to have needs and a duty to meet those needs if they are ‘eligible’. So, what are eligible needs?

This is set out in The Care and Support (Eligibility Criteria) Regulations 2015.

Our webpages and factsheet on the Assessment for Care and Support in England has information about ‘eligibility criteria’ for a person with care needs (as well as carers) and explains how people are assessed as needing care and support. It also includes some tips on how to prepare for an assessment.
  • The person must usually be assessed as having ‘eligible needs’ in the care assessment and satisfy the financial assessment for the LA to have a duty to meet their needs.
If someone is a self-funder, the Local authority will only be under a duty to meet their eligible needs if the person requests them to, and their needs are going to be met at home. The LA can, and usually do charge self-funders for this.
Local authorities may choose to use their ‘power’ to help self-funders arrange a care home placement when requested, but they are under no duty to do this.

Although the criteria for what’s classed as an ‘eligible need’ is the same anywhere in England how a person’s needs are met will vary from one LA to another. This is because different services are available in different places.

If you do feel the LA has breached their duty, or not acted appropriately, issues may be best addressed via the complaints process. Every LA must make information about their complaints process available to the public and it is usually available on their website, though it is sometimes referred to as ‘concerns’ or ‘compliments’ so you may have to search for it.

It is always advisable to ask the LA for written confirmation of any information and decisions reached whether it’s about assessment of need, how needs will be met, or about the financial assessment. This is crucial if there is a need to complain about the service received because although the complaints process starts locally and you must complain formally first to the LA, if the complaint is not resolved you may be able to take the complaint to the Local Government and Social Care Ombudsman and this type of evidence is incredibly helpful.

With or without a dispute the Care Act very clearly lays out the LA’s duty to provide information and advice to people (whether they have eligible care needs or not) and to keep people fully informed. For example to keep people informed about how their needs are assessed, how they will be met, and how their financial assessment is done.

The rules in Wales are similar to England, and are covered by the Social Services and Wellbeing (Wales) Act 2014. You can find more information in the following factsheets - Assessment for Care and Support in Wales

The rules differ in Northern Ireland. In Northern Ireland Trusts are under a duty to meet needs that are assessed as ‘critical’ and a ‘substantial risk’, but each trust will choose whether they wish for commissioners to fund needs assessed as ‘moderate’ and/or ‘low risk’. Therefore, in one trust someone with moderate needs may find that their needs are met, whereas in another they would may not be deemed eligible. For more information see the following factsheet - Assessment for Care and Support in Northern Ireland

Thread reviewed, refreshed & reposted April 2023
 
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