Law and policy

Contents

Legal Literacy

Legal literacy:

Social workers need to understand the powers and duties relevant to working with carers, and the principles from administrative law that should guide decision making. Below we give a brief summary of where to look for relevant law and guidance on key issues including:

Carers’ assessment and eligibility
Safeguarding adults
The Mental Capacity Act 2005
Human Rights

Legal literacy can be defined as “the ability to connect relevant legal rules with the professional priorities and objectives of ethical practice” (Braye and Preston-Shoot, 2016). It is a mixture of

Law: doing things rights
Ethics: doing the right things
Rights: thinking derived from human rights and equality.

Social workers need to be able to use critical analysis of the legal rules to work out how best to apply them to situations involving carers. They need to apply professional judgement and the principles of defensible decision making, and be able to evidence their reasoning and thought process – ‘show their working’ to apply the law in practice.

Kemshall (2003) identifies the following criteria for defensible decision making:

All reasonable steps are taken
Reliable assessment methods are used
Information is collected and thoroughly evaluated
Decisions are recorded and carried through
Agency processes and procedures are followed
Practitioners and managers are investigative and proactive.

Sometimes, legal decisions may feel too complex to handle alone. Social workers should be familiar with the sources of support and advice to call on when making complex or controversial decisions to do with the law. Your manager will be the first port of call; they may also decide to refer a decision up, as required.

References and further reading:

Braye S and Preston-Shoot M (2016) Strategic Briefing: Legal literacy in adult social care. Dartington: Research in Practice for Adults.
Kemshall H (2003) ‘The Community Management of High Risk Offenders’. Prison Service Journal March.
Nosowska G and Series L (2013) Good decision-making: Practitioners’ Handbook. Dartington: Research in Practice for Adults

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The Care Act 2014

Assessment and eligibility

The Care Act guidance states that assessment should ‘not just be seen as a gateway to care and support, but should be a critical intervention in its own right, which can help people to understand their situation and the needs they have, to reduce or delay the onset of greater needs, and to access support when they require it.’ Some important considerations for carers are:

When assessing an adult, you must involve any carer that the adult has
There is a duty to assess a carer where it appears to a local authority that they may have needs for support (whether currently or in the future)
A carer is someone who provides or intends to provide care for an adult
Assessment of a carer should look at the carer’s: ability to care; willingness to care; the impact of their needs; the outcomes that they wish to achieve; how support could contribute to achieving outcomes
Carer’s assessment must also look at employment and participation in education, training or recreation.

There is a duty to meet the carer’s needs for support which meet the eligibility criteria. The national eligibility criteria set a minimum threshold for carer support needs. All local authorities must comply with this national threshold. Authorities can also decide to meet needs that are not deemed to be eligible if they chose to do so.

In considering whether a carer has eligible needs, local authorities must consider whether:

the needs arise as a consequence of providing necessary care for an adult i.e. care that an adult needs and cannot do themselves
the effect of the carer’s needs is that they are unable to achieve any of the outcomes in the criteria
as a consequence of that fact there is, or there is likely to be, a significant impact on the carer’s wellbeing.

The decision about eligibility is a person-centred one. The guidance states that ‘Local authorities will have to consider whether the carer’s needs and their inability to achieve the outcomes will have an important, consequential effect on their daily lives, their independence and their own wellbeing. In making this judgment, local authorities should look to understand the carer’s needs in the context of what is important to them.’

References and further reading:

The Care Act 2014 Statutory Guidance, First Contact and Identifying Needs
The Care and Support (Eligibility Criteria) Regulations 2014
SCIE (2014) Eligibility determination for the Care Act 2014
SCIE (2014) Care Act: Practice example Carer Eligibility – Video
Carers’ UK Getting care and support
Helen Sanderson Associates, Person-centred planning tools
- Person-centred tools for assessment, planning and review

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Safeguarding adults

Chapter 14 of the Care Act guidance (DH, 2016) gives details about the principles and practicalities of safeguarding adults. It explains that safeguarding means protecting an adult’s right to live in safety, free from abuse and neglect, and should make sure that the individual’s wellbeing is promoted. Any action taken in safeguarding should give regard to the individual’s wishes, feelings, views and beliefs, drawing on the principles of Making Safeguarding Personal.

Section 14.45 onwards outlines guidance around carers and safeguarding. It explains that carers may be involved in any of the following situations that require a safeguarding response:

Being a witness or speaking up about abuse or neglect
Experiencing intentional or unintentional harm from the adult they are trying to support, or from professionals or organisations they are in contact with
By intentionally or unintentionally harming or neglecting the adult they support.

Carers must be listened to if they raise a concern about abuse or neglect and, where appropriate, a safeguarding enquiry should be undertaken, involving other agencies if necessary.

Assessments of people with care needs and carers must include consideration of the wellbeing of both people. Other key principles related to carers and safeguarding include:

Prevention should be a key priority; this may include providing support to carers to prevent the risk of (unintentional or intentional) harm to the person they care for.
Carers should be involved in safeguarding enquiries related to the person they care for, as appropriate
Consideration should be given to the appropriateness of joint assessments
Consideration should be given to risk factors or changes in circumstances which may make harm or abuse more likely, and how to mediate them.

The references below give further support and guidance on safeguarding where carers might be involved.

References and further reading

General: