Duties and Powers to meet Care and Support Needs

1. The Duty to meet Needs

Following a needs assessment and subsequent determination of eligible need the Local Authority has a duty under Section 18 of the Care Act to meet the eligible needs when:

The person is ordinarily resident in the Local Authority area; or
The person is present in the Local Authority area and of no settled residence; and
The person consents to the Local Authority meeting their needs; or
Where the person lacks capacity a Best Interests decision is made that the Local Authority should meet the needs.

In addition to this, where the service to be provided is chargeable and the Local Authority intends to charge the needs must be met when:

The person has been financially assessed as having financial resources under the upper financial limit (i.e. they are not self funding); or
The person has been financially assessed as having financial resources above the upper financial limit and asks the Local Authority to arrange services to meet eligible needs (excluding care home provision); or
The person has been financially assessed as having financial resources above the upper limit, lacks capacity to arrange services and there is no other person authorised to do so on their behalf (e.g. a Deputy).

The Duty to meet needs when support and services are already in place

A person may already be in receipt of care and support which meets their needs. For example, needs may be met by a carer, in an educational establishment or by another institution other than the local authority. In these circumstances the Local Authority remains under a duty to meet the person's eligible needs but if the Local Authority is satisfied that the existing method of meeting the needs is meeting the person's eligible needs, then they may not actually have to arrange or provide any services to comply with that duty.

Should the support and/or services in place become inappropriate or unstainable the Local Authority must then meet the need.

Important to know

The duty for the Local Authority to meet eligible needs does not apply when there is a carer meeting those needs, so long as the carer is willing and able to continue meeting the needs.

2. The Power to meet Needs

Powers to meet the needs of people who are ordinarily resident in the Local Authority area

Under Section 19 of the Care Act the Local Authority has the power following a needs assessment to:

Meet needs that have not been determined as eligible using the national eligibility criteria (normally for the purpose of prevention or delay); or
Arrange for services to meet the eligible needs of a person with financial resources above the upper financial limit who is going into a care home; so long as;
The person is ordinarily resident in the Local Authority area or present in the area with no settled residence.

The Local Authority also has the power to meet needs without having carried out an assessment, made a determination about eligible needs or assessed financial resources when the need for Care and Support is urgent.

Powers to meet the needs of people who are not ordinarily resident in the Local Authority area

Section 19 powers also apply to people who are ordinarily resident in the area of another Local Authority but have a need for Care and Support (whether this is urgent or non-urgent).

When deciding to provide Care and Support to people who are ordinarily resident in another area the Local Authority must notify the other Local Authority of their intention to do so. This enables them to seek financial reimbursement of the cost in meeting the need.

For further information see Ordinary Residence.

Communicating the decision not to meet needs when there is a power to do so

If the Local Authority decides not to use its powers to meet needs, it must give the person (or their representative) a written explanation for taking this decision (unless it has already provided such an explanation following assessment). This explanation must be accessible to the person and include information and advice on how the person can reduce or delay their needs in future. This should be personal and specific advice based on the person's needs assessment and not a generalised reference to prevention services or signpost to a general web-site. For example, this should involve consideration of alternative ways in which a person could reduce or delay their care and support needs, including signposting to support within the local community.

Where the Local Authority is meeting some needs, but not others, the person must receive a Care and Support plan for the needs that are going to be met, and a written explanation for the needs that are not.

3. When the Local Authority May Not meet Needs

Persons subject to Immigration Control

Under Section 21 of the Care Act the Local Authority must not meet the needs of any person who is subject to Section 115 of the Immigration and Asylum Act 1999 and whose needs for Care and Support have arisen solely because:

They are destitute; or
Because of the physical effects, or anticipated physical effects of being destitute.

The Provision of Health Services

Under Section 22 of the Care Act the Local Authority must not meet a person's eligible needs by providing or arranging services or support that are the responsibility of the NHS to provide under the National Health Service Act 2006, unless:

Doing so would be merely incidental or ancillary (secondary) to doing something else to meet eligible needs; and
The service or facility in question would be of a nature that the Local Authority could be expected to provide.

Example 1:

Mary has an eligible need for medication administration only because she has a hand injury. As she has no other eligible needs, the Local Authority must not meet this need as it is the responsibility of the ICB under the National Health Service Act 2006.

Example 2:

Mary has an eligible need for medication administration and personal care. Her medication needs to be administered at the same time as she receives personal care support. Although medication administration is a need that should be met by the ICB, the Local Authority can arrange for the medication to be administered under the Care Act because the need is secondary to the personal care support.

Example 3:

Peter has a need for nursing care. He is going to stay at home to receive this. The Local Authority cannot arrange for a registered nurse to visit his home to undertake nursing tasks as this is the responsibility of the ICB under the National Health Service Act 2006.

Example 4:

Peter has a need for nursing care. He is going to receive this in a care home that provides nursing care as well as other Care and Support, such as personal care and support with eating and drinking. The Local Authority can arrange this service so long as the ICB has been involved or it is temporary. The ICB must be involved because the decision around the need for nursing care should be made by a person with suitable skills to understand the person's health needs.

The provision of housing

Under Section 23 of the Care Act, adult Care and Support may not meet needs under Section 18 or Section 19 by doing anything that it is the responsibility of:

Another Authority under the Housing Act 1996; or
The same Local Authority under the Housing Act 1996.

Important to know

The duty to meet eligible needs is not discharged just because a person has another entitlement to a different service which could meet those needs, but of which they are not availing themselves. The needs remain 'unmet' (and so the Local Authority remains under a duty to meet them) until those needs are actually met by the relevant service being provided or arranged.