Changes to the Care Act guidance

Jonathan Auburn highlights the key changes that the Department of Health has made to the Care Act Guidance.

The Department of Health has posted changes to the Care and Support Statutory Guidance on its website. Unhelpfully, there is no detailed list of the changes, nor any tracked changes or marked up version anywhere. So to see what has changed involves comparing the texts of old and new line by line. The major changes seem to be in the following areas:

– Chapter 7, on independent advocacy, now has guidance on conflicts of interest within provider organisations, and amendments to reflect changes in the appeals system.

– Chapter 8, on charging and financial assessment, says it has amended the guidance “on charging for social care and local authority charging discretion”, though the specific changes are hard to find. Paragraph 8.51, which advises against the systematic charging of carers, has been strengthened by the addition of the ADASS factsheet on the issue. The former paragraph 8.55, concerning carer’s assessments identifying the need for time away from the person cared for, seems to have been removed.

– Chapter 14, on safeguarding, has been very substantially amended. There is new best practice guidance on self-neglect and further guidance on the sort of enquiries required for compliance with the section 42 duty. Interestingly, it indicates that section 42 is aimed at those at risk of abuse from third parties, rather than from self-neglect. There is a new definition of domestic violence, more detail on financial abuse, further guidance on safeguarding and criminal investigations, local authority powers to report and respond to abuse, and various points on the arrangement of local authority safeguarding teams.

– Chapter 19, on ordinary residence, contains an important change to our understanding of the application of ordinary residence rules to mental health after-care cases. The new paragraph 19.47 states that the ordinary residence deeming provisions in section 39 of the Care Act do not apply to section 117 of the Mental Health Act 1983, and nor have they been incorporated into section 117 of the 1983 Act.

The last of these amendments is one of the most interesting. It was slipped in with virtually no attention drawn to it, and will now create two regimes for ordinary residence, one for responsibility for mental health after-care, and one for responsibility for all other adult social care obligations.

As an example of the impact of this change, take the situation of a person living in the community, then in a mental hospital on voluntary admission, and then detained in the same hospital. Under the previous guidance, he may have been ordinarily resident in the community, by application of the deeming provisions. Under the new guidance, he could be regarded as ordinarily resident in the mental hospital, as he was admitted there on a voluntary basis (cf R (Sunderland CC) v South Tyneside Council [2011] EWHC 2355 (Admin) for “residence” in a mental hospital on voluntary admission).

There are many other minor changes to the Guidance, for example to reflect the deferral of some measures to 2020, clarify minor matters and add further case studies.

Jonathan Auburn is a barrister at 11KBW, specialising in public law, local government, community care and related areas. He can be contacted   This email address is being protected from spambots. You need JavaScript enabled to view it. or Twitter @jonauburn11kbw.

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