An Act to place duties on local authorities and health bodies in respect of carers; and for connected purposes.
[22nd July 2004]
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
1-
Duty to inform carers of right to assessment
(1)
In section 1 of the Carers (Recognition and Services) Act 1995 (c. 12) (assessment of ability of carers to provide care), after subsection (2A) there is inserted—
"(2B)
In any case where—
(a)
a local authority are carrying out an assessment mentioned in paragraph (a) of either subsection (1) or subsection (2) above in relation to the relevant person or (as the case may be) a disabled child, and
(b)
it appears to the local authority that an individual may be entitled to request (but has not requested) an assessment under the subsection in question of his ability to provide and to continue to provide care for the relevant person or the disabled child,
the local authority must inform the individual that he may be so entitled before they make their decision as to the needs of the relevant person or the disabled child.”
(2)
After section 6 of the Carers and Disabled Children Act 2000 (c. 16) there is inserted—
“6A
Duty to inform carers of right to assessment
(1)
Subsection (2) applies if it appears to a local authority that it would be required to carry out a carer’s assessment on being asked to do so by—
(a)
the carer, or
(b)
a person with parental responsibility for a disabled child (“the responsible person”).
(2)
The local authority must inform the carer or, as appropriate, the responsible person that he may be entitled to a carer’s assessment (but this is subject to subsections (3) and (4)).
(3)
Subsection (2) does not apply in relation to the carer if the local authority has previously—
(a)
carried out a carer’s assessment for him in relation to the person cared for,
(b)
informed him that he may be entitled to a carer’s assessment in relation to the person cared for, or
(c)
carried out an assessment of him under section 4(3) of the Community Care (Delayed Discharges etc.) Act 2003 in relation to the person cared for.
(4)
Subsection (2) does not apply in relation to the responsible person if the local authority has previously carried out a carer’s assessment for him in relation to the disabled child or informed him that he may be entitled to a carer’s assessment in relation to the disabled child.
(5)
In this section “carer’s assessment” means—
(a)
in the case of the carer, an assessment under section 1 of his ability to provide and to continue to provide care for the person cared for,
(b)
in the case of the responsible person, an assessment under section 6 of his ability to provide and to continue to provide care for the disabled child.”
2-
Assessment of carers
(1)
In section 1 of the Carers (Recognition and Services) Act 1995 (c. 12) (assessment of ability of carers to provide care), after subsection (2B) (inserted by section 1) there is inserted—
"(2C)
An assessment under subsection (1) or (2) above must include consideration of whether the carer—
(a)
works or wishes to work,
(b)
is undertaking, or wishes to undertake, education, training or any leisure activity.”
(2)
In section 1 of the Carers and Disabled Children Act 2000 (c. 16) (right of carer to assessment), after subsection (3) there is inserted—
"(3A)
An assessment under subsection (1) must include consideration of whether the carer—
(a)
works or wishes to work,
(b)
is undertaking, or wishes to undertake, education, training or any leisure activity.”
(3)
In section 6 of that Act (assessment of person with parental responsibility caring for disabled child), after subsection (2) there is inserted—
"(2A)
An assessment under subsection (1) must include consideration of whether the person with parental responsibility for the child—
(a)
works or wishes to work,
(b)
is undertaking, or wishes to undertake, education, training or any leisure activity.”
3-
Co-operation between authorities
(1)
If a local authority requests an authority mentioned in subsection (5) to assist it in planning the provision of services to persons—
(a)
entitled to an assessment under any of the provisions mentioned in subsection (4), or
(b)
for whom those persons provide, or intend to provide, a substantial amount of care on a regular basis,
the authority mentioned in subsection (5) must give due consideration to the request.
(2)
Subsection (3) applies if—
(a)
under a provision mentioned in subsection (4) a local authority is assessing, or has assessed, the ability of a person (“the carer”) to provide and to continue to provide care for another person (“the person cared for”), and
(b)
the local authority forms the view that the carer’s ability to provide and to continue to provide care for the person cared for might be enhanced by the provision of services (whether for the carer or the person cared for) by an authority mentioned in subsection (5).
(3)
If the local authority requests such an authority to provide any such services the authority or person must give due consideration to the request.
(4)
The provisions are—
(a)
section 1 of the Carers (Recognition and Services) Act 1995 (c. 12), and
(b)
sections 1 and 6 of the Carers and Disabled Children Act 2000 (c. 16).
(5)
The authorities are—
(a)
any other local authority,
(b)
any local education authority,
(c)
any local housing authority, and
(d)
any Special Health Authority, Local Health Board, Primary Care Trust, National Health Service Trust or NHS foundation trust.
(6)
Subsections (1) and (3) do not apply in relation to any action which could be the subject of a request by the local authority to the authority mentioned in subsection (5) under section 27 of the Children Act 1989 (c. 41).
(7)
In this section—
“local authority” has the same meaning as in section 46 of the National Health Service and Community Care Act 1990 (c. 19),
“local education authority” has the same meaning as in the Education Act 1996 (c. 56), and
“local housing authority” has the same meaning as in the Housing Act 1985 (c. 68).
4-
Minor amendment
In Schedule 1 to the Local Authority Social Services Act 1970 (c. 42) (which sets out enactments conferring functions referred to each local authority’s social services committee), at the end there is inserted—
“Carers (Equal Opportunities) Act 2004
Section 3, in so far as it confers functions on a local authority within the meaning of that section.
Co-operation between authorities.”
5-
Financial provision
There shall be paid out of money provided by Parliament any increase attributable to this Act in the sums payable out of money so provided by virtue of any other Act.
6-
Short title, commencement and extent
(1)
This Act may be cited as the Carers (Equal Opportunities) Act 2004.
(2)
Apart from this section, this Act comes into force on such day as may be appointed by order made by statutory instrument.
(3)
An order under subsection (2) is to be made—
(a)
in relation to England, by the Secretary of State, and
(b)
in relation to Wales, by the National Assembly for Wales.
(4)
Different days may be appointed for different provisions or for different purposes.
(5)
The Secretary of State may by order made by statutory instrument provide that section 3 of this Act shall have effect in its application to the Isles of Scilly with such modifications as are specified in the order.
(6)
A statutory instrument containing an order under subsection (5) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
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INTRODUCTION
1.
These explanatory notes relate to the Carers (Equal Opportunities) Act 2004 which was introduced as a Private Member's Bill by Dr. Hywel Francis and sponsored in the House of Lords by Lord Ashley of Stoke, and which received Royal Assent on 22nd July 2004. They have been prepared by the Department of Health in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.
2.
The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.
3.
This Act extends only to England and Wales.
SUMMARY AND BACKGROUND
4.
5.2 million people in England and Wales identified themselves in the 2001 Census as providing unpaid care to support family members, friends, neighbours or others because of long-term physical or mental ill-health, disability or old age. That represented nearly 10 per cent of the population and of those, 21 per cent (1.09 million) provided care for 50 or more hours per week. The population of carers is not static but changes as people move in and out of caring with the majority of people providing care at some point in their lives.
5.
Section 1 of the Carers (Recognition and Services) Act 1995 (c. 12) ("the 1995 Act") provides that at the time a local authority assess a person's needs for community care services or assess the needs of a disabled child, an individual who provides or intends to provide a substantial amount of care on a regular basis for that person has the right to request an assessment of his ability to provide and continue to provide care. The authority must take that assessment into account when making any decision about services for the cared for person or to meet the needs of the child, as the case may be.
6.
In 1999 the Government published the National Carers' Strategy which was developed in association with carers and the organisations that represent them. The Strategy identified key factors in supporting sustainable caring, one of which was the need for legislation to enable local authorities to provide services to carers.
7.
Section 1 of the Carers and Disabled Children Act 2000 (c. 16) ("the 2000 Act") built on the 1995 Act by giving carers the right to request an assessment that was not dependent on the local authority carrying out an assessment of the needs of the cared for person. It also gave local authorities power to provide certain services to meet the carer's needs and help the carer to care.
8.
Section 6 of the 2000 Act made provision for carers with parental responsibility for a disabled child to request an assessment of their ability to provide and to continue to provide care for the child. The local authority must take the assessment into account when deciding what services, if any, to provide to the child or the child's family under section 17 of the Children Act 1989 (c. 41) ("the 1989 Act").
9.
The legislation referred to above and this Act are concerned with the many people who provide care, for example, to support a member of their family, a neighbour or friend. This excludes people who provide care through a contract or as a volunteer for a voluntary organisation.
10.
This Act makes three main changes to the law with the objective of providing further support for carers and helping to ensure that they are not placed at a disadvantage because of the care they provide. First, the Act requires local authorities to inform carers, in certain circumstances, that they may be entitled to an assessment under the 1995 and 2000 Acts. Second, when undertaking a carer's assessment, the local authority must consider whether the carer works, undertakes any form of education, training or leisure activity, or wishes to do any of those things. Third, the Act provides for co-operation between local authorities and other bodies in relation to the planning and provision of services that are relevant to carers.
TERRITORIAL APPLICATION: WALES
11.
The Act provides for the amendment of the 1995 Act, the 2000 Act and the Local Authority Social Services Act 1970 (c. 42) ("the 1970 Act"). These changes will apply equally to England and Wales, and the authorities to which the co-operation provisions of section 3 will apply include those which cover Wales. The National Assembly for Wales is responsible for commencing the provisions of the Act as regards Wales, and for issuing guidance or directions for the purpose of the 1970 Act to local authorities in Wales.
COMMENTARY ON SECTIONS
Section 1: Duty to inform carers of right to assessment
12.
This section introduces new provisions into the 1995 and 2000 Acts which require a local authority, in certain circumstances, to inform carers that they may be entitled to an assessment under those Acts. This will ensure that carers get information about their rights at the appropriate time.
13.
Section 1(1) inserts a new subsection (2B) into section 1 of the 1995 Act. This means that when a local authority are carrying out an assessment of a person's community care needs or the needs of a disabled child, and it appears to the authority that an individual may be entitled to ask for (but has not requested) an assessment of his ability to care, the local authority must inform the carer of this right before they go on to make any decision about services.
14.
Section 1(2) amends the 2000 Act by inserting a new section 6A. The effect of this amendment is that where it appears to a local authority that it would be required to carry out a carer's assessment if asked to do so by the carer or a person with parental responsibility for a disabled child, then the authority must inform that person that he may be entitled to an assessment.
15.
Subsection (6A)(3) and (4) sets out the circumstances where the local authority does not need to provide this information. This is where, in relation to the cared for person or the disabled child (as the case may be), the local authority has already carried out a carer's assessment on that person's behalf or has informed him that he may be entitled to such an assessment. A carer does not need to be given this information where the local authority has, in relation to the person cared for, previously carried out an assessment of him under section 4(3) of the Community Care (Delayed Discharges etc.) Act 2003 (c. 5).
16.
A carer's assessment is defined in section 6A(5) and means an assessment under section 1 or section 6 of the 2000 Act.
Section 2: Assessment of carers
17.
Subsection (1) amends section 1 of the 1995 Act and provides that an assessment of a person's ability to care must include consideration of whether the carer works or wishes to work, is undertaking or wishes to undertake, any education, training or leisure activity. This ensures that best practice and current Department of Health guidance is enshrined in legislation. The effect of this amendment is that the local authority will have to ask the carer about those activities during the assessment, and then take this into account when making the decision about whether the needs of the cared for person or the disabled child (as the case may be) call for the provision of any services by them.
18.
Subsection (2) makes a similar amendment to section 1 of the 2000 Act by adding a new subsection (3A). This will mean that when making any decision about services for the carer under section 2 of that Act, the local authority must consider whether a carer works or wishes to work, is undertaking or wishes to undertake, any education, training or leisure activity.
19.
Subsection (3) makes similar changes to section 6 of the 2000 Act (assessment of persons with parental responsibility for disabled children). It does this by inserting a new subsection (2A). This feeds through to the existing duty of the local authority to take that assessment into account in deciding what, if any, services to provide under section 17 of the 1989 Act (provision of services to children and their families). For example, if the child's carer expressed an intention to undertake a college course or to return to employment, then the local authority would need to consider this when making any decision about services in light of the assessment.
Section 3: Co-operation between authorities
20.
Section 3 facilitates joint working by providing a formal basis for co-operation between local and other authorities in relation to carers and cared for persons. It sets out two situations where an authority must give due consideration to a request by a local authority for assistance in relation to the planning or the provision of services.
21.
The authorities that must give due consideration to a request are specified in subsection (5) and are any other local authority, any local education authority, any local housing authority, and certain National Health Service bodies, including any Primary Care Trust, any National Health Service Trust or NHS foundation trust, and any Local Health Board.
22.
Firstly, subsection (1) covers a situation where a local authority asks such an authority for assistance in planning the provision of services to persons who are entitled to an assessment under section 1 of the 1995 Act, sections 1 or 6 of the 2000 Act, or for whom those individuals provide, or intend to provide, regular and substantial care.
23.
For example, this will ensure that a local authority is better placed to seek information from, or the participation of, the NHS when deciding how to deliver carers' services that are linked local NHS services.
24.
Secondly, subsection (3) deals with a situation where a local authority is assessing or has assessed a person's ability to care under the 1995 or 2000 Acts, and considers that his ability to provide and to continue to provide care would be enhanced by the provision of services by another authority. The type of services are not specified in the Act, but can include services for either the carer or the person cared for.
25.
So, where a local authority makes a request under subsection (1) or (3), the other authority must make a decision about whether to provide the assistance or the services, as the case may be, that have been requested.
26.
Subsection (6) provides that subsections (1) and (3) do not apply to acts that could be the subject of a request by the local authority under section 27 of the 1989 Act (co-operation between authorities).This is to make it clear that nothing in this Act affects the operation of that legislation.
Section 4: Minor amendment
27.
This section amends the 1970 Act by providing that local authority functions under section 3 of this Act are social services functions. In particular, this means that for the purpose of the 1970 Act, the Secretary of State, in relation to England, and the National Assembly for Wales, in relation to Wales, can give guidance or directions to local authorities about the carrying out of their functions under section 3 of this Act.
COMMENCEMENT
28.
Except for section 6 which comes into force on Royal Assent, this Act will be brought into force by orders made in relation to England by the Secretary of State and in relation to Wales by the National Assembly for Wales.
THE FOLLOWING TABLE SETS OUT THE DATES AND HANSARD REFERENCES FOR EACH STAGE OF THIS ACT'S PASSAGE THROUGH PARLIAMENT:
