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Multi-agency statutory guidance for dealing with forced marriage and multi-agency practice guidelines: Handling cases of forced marriage (accessible version)

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Multi-agency statutory guidance for dealing with forced marriage and multi-agency practice guidelines: Handling cases of forced marriage (accessible version)

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Multi-agency statutory guidance for dealing with forced marriage

I. The status and purpose of this document

Forced marriage is a crime. It is a form of abuse directed towards a child or vulnerable adult, including adults who are forced into marriage against their free will.

Ignoring the needs of victims should never be an option. Forced marriage affects people from many communities and cultures, so cases should always be addressed using all existing structures, policies and procedures designed to safeguard children and adults with care and support needs, including victims who may be trafficked, enslaved or are victims of domestic abuse, for example, and who are forced to marry someone against their will.

This guidance is issued as statutory guidance under section 63Q(1) of the Family Law Act 1996 (the 1996 Act). Section 63Q of the Act states:

1. The Secretary of State may from time to time prepare and publish guidance to such descriptions of a person as the Secretary of State considers appropriate about -

a. the effect of this Part or any provision of this Part; or

b. other matters relating to forced marriages.

2. A person exercising public functions to whom guidance is given under this section must have regard to it in the exercise of those functions.

3. Nothing in this section permits the Secretary of State to give guidance to any court or tribunal.

As statutory guidance issued under section 63Q of the 1996 Act, a person exercising public functions to whom the guidance is given must have regard to it in the exercise of those functions. This means that a person to whom the guidance is given must take the guidance into account and, if they decide to depart from it, must have clear reasons for doing so.

All Chief Executives, Directors and Senior Managers should strongly recommend that their staff consult the multi-agency practice guidelines on forced marriage.

Existing strategic bodies also need to ensure that their member agencies work effectively, using agreed policies and procedures to address this issue. This includes, but is not limited to, local authorities, local councils, community safety partnerships, local strategic partnerships, local safeguarding partners, regional Safeguarding Children Boards and Safeguarding Adults Boards in Wales, children's trusts, multi-agency risk assessment conferences, learning disability partnership boards, local criminal justice boards, local family justice councils and Multi-Agency Adult Protection Management Committees. This is not necessarily a complete list and will cover other organisations who have a responsibility to protect children, vulnerable adults and other such victims of trafficking, slavery or domestic abuse, for example.

Aims

This document sets out the duties and responsibilities of agencies with the aim of protecting children and adults facing forced marriage. It does not attempt to replicate existing safeguarding guidance but should form part of all the existing child and adult protection structures, policies and procedures.

The document highlights specific arrangements that may inadvertently place a victim at risk of harm. These include failure to share information appropriately between agencies, the involvement of families, breaches of confidentiality and all forms of family counselling, mediation, arbitration and reconciliation.

Purpose

This guidance is targeted at Chief Executives, Directors and Senior Managers of persons and bodies to whom the guidance is given, or of third parties exercising public functions on behalf of those persons or bodies. It outlines their responsibilities concerning the development and maintenance of local procedures and practice arrangements to enable their front-line professionals to handle cases of forced marriage effectively. It sets out how cases of forced marriage should be responded to using existing frameworks for safeguarding children with or without learning disabilities, and how to protect all adults including those with learning disabilities or other support needs, from the range of abuses associated with forced marriage.

The multi-agency statutory guidance also covers issues such as staff training, developing inter-agency policies and procedures, raising awareness and developing prevention programmes through outreach work.

Frontline professionals handling cases of forced marriage are strongly recommended to consult the multi-agency practice guidelines.

Audience

This multi-agency statutory guidance is given to all persons and bodies in England and Wales who exercise public functions in relation to safeguarding and promoting the welfare of children. Such persons and bodies include, but are not limited to, local authorities, NHS organisations, Police and Crime Commissioners (PCCs) and Chief Officers of police and relevant partners of the Safeguarding Children Boards in Wales. This guidance is also given to the Children and Family Court Advisory and Support Service (established under section 11 of the Criminal Justice and Courts Services Act 2000) and safeguarding partners (established under section 16E section 31 of the Children Act 2004).

This guidance also applies to all persons and bodies in England and Wales who exercise public functions to protect vulnerable adults or those with support needs from abuse. Examples of these bodies may include but are not limited to PCCs and Chief Officers of police, and NHS organisations. They may also include key elements of local authorities and/or district councils, in particular adult social care services, NHS organisations, primary care trusts and local health boards and relevant partners of safeguarding adults boards in Wales.

Definitions

For the purpose of this guidance, the following definitions are used:

Adult

'Adult' is defined as a person aged 18 years or over.

Child, children and young people

As defined in the Children Acts 1989 and 2004 and the Social Services and Well-being (Wales) Act 2014. 'Child' means a person who has not reached their 18th birthday. This includes young people aged 16 and 17 who are living independently; their status and entitlement to services and protection under the Children Act 1989 are not altered by the fact that they are living independently.

Child in need

Children who are defined as being "in need" under s.17 Children Act 1989, are those whose vulnerability is such that they are unlikely to reach or maintain a satisfactory level of health or development, or their health or development will be significantly impaired, without the provision of services (s.17 (10) Children Act 1989), and those who are disabled. Local authorities have a duty to safeguard and promote the welfare of children in need.

Domestic abuse

The statutory definition of domestic abuse covers any incident or pattern of violence or abuse between those aged 16 or over who are personally connected to each other. Behaviour is "abusive" if it consists of:

Forced marriage

A forced marriage is a marriage in which one or both spouses do not consent to the marriage but are coerced into it. Force can include physical, psychological, financial, sexual and emotional pressure. In the cases of vulnerable adults who lack the capacity to consent to marriage, coercion is not required for a marriage to be forced.

Section 121 of the Anti-social Behaviour, Crime and Policing Act 2014 sets out the offence of forced marriage. It states that a person commits an offence under the law in England and Wales if he or she "uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage and believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without free and full consent. It also states that forced marriage can be committed if a person lacks capacity, whether or not coercion plays a part. Finally, and since 27 February 2023, it also states that it is an offence to carry out any conduct for the purpose of causing a child to enter into a marriage before the child's eighteenth birthday (whether or not the conduct amounts to violence, threats, any other form of coercion or deception). If the person is found guilty on indictment, the maximum penalty is seven years' imprisonment. The Act also makes it an offence to lure someone overseas for the purpose of forced marriage.

Forced Marriage Protection Order (FMPO)

A FMPO is a civil law measure which can be sought under section 63 of the Family Law Act 1996. The aim of a FMPO is to protect and safeguard a person who has been, or is being, forced into marriage. FMPOs are made by the family courts and can be made in emergency situations so that immediate and enforceable protection can be put in place. This is known as an ex-parte or without notice order as the relevant documents will not have been served on the respondents. A FMPO is unique to each case and contains legally binding prohibitions, restrictions and/or requirements relating to and directions aimed at changing the behaviour of a person or persons who force or attempt to force someone into marriage that they have not consented to. Breach of a FMPO is a criminal offence with a maximum sentence of five years' imprisonment.

Further information on FMPOs can be found in chapter 16 of the multi-agency practice guidelines or in HM Courts and Tribunals Service (HMCTS) court leaflet (FL701).

So called 'honour'-based abuse

The terms 'honour' crime, 'honour'-based abuse and 'honour'-based violence relate to a variety of offences (mainly but not exclusively against women and girls), including emotional abuse, controlling and coercive behaviour, physical assault, imprisonment and murder, with the victim often being punished by their family or community for undermining what the family or community perceives to be the correct code of behaviour.[footnote 10] Such behaviour is also likely to amount to domestic abuse and may comprise psychological, emotional and financial abuse, as well as physical abuse.

In transgressing what is perceived to be the correct code of behaviour in the eyes of the family or the community, the victim shows that they have not followed their family's and/or community's rules of behaviour and this is said to be to the 'shame' or 'dishonour' of the family and/or community.

Further information about 'honour'-based abuse can be found in chapter 2.5 of the multi-agency practice guidelines.

Learning disability

The term "learning disability" refers to the following long-lasting conditions:

Impaired intelligence: a significantly reduced ability to understand complex information or learn new skills,

Impaired social functioning: a reduced ability to cope independently, or

Long lasting: a condition which started before adulthood (18 years of age) and has a lasting effect.[footnote 11]

A learning disability is a permanent impairment and not to be confused with learning difficulty or mental illness, which can vary or be temporary, although people with learning disabilities can also experience mental illness. Some healthcare professionals use the term 'learning disability' and 'learning difficultly' interchangeably. However, people with learning disabilities are not one homogenous group. Having a learning disability impacts upon people in a range of different ways and each person should be treated as an individual. Conversely, it is also incorrect to assume that those with capacity will be less vulnerable to forced marriage.

Relevant Third Party

Section 63C of the Family Law Act 1996 provides for three types of applicant who may apply for a FMPO. They are the person who is to be protected by the order, a "relevant third party" or any other person with the permission of the court. A "relevant third party" means a person specified by order of the Lord Chancellor who may apply on behalf of a victim without the leave of the court. Currently, this only extends to local authorities.[footnote 12]

Validity

Some forced marriages will be legally valid and will subsist unless and until an annulment is obtained or a divorce is granted by the court. Others may be legally void on the specific grounds set out in section 11 of the Matrimonial Causes Act 1973. There are strict legal requirements that govern whether a marriage is valid. In England and Wales, this would be covered by the Marriage Act 1949 and the common law. The rules recognising a marriage vary depending on the country in which the marriage took place. When considering the validity of a marriage, particularly a marriage that took place overseas, specialist legal advice should be sought.

Agencies should also be mindful that a marriage is not automatically void because it was found to be a forced marriage.

Other remedies

In addition to the specific remedy in the Family Law Act 1996 (section 63A on FMPOs), there are several other civil and family orders that can be made to protect those threatened with violence, abuse or harm more generally. For children, an application for a Care or Supervision order can be made under the Children Act 1989 by a local authority or the NSPCC. Wardship proceedings may be issued in the High Court, by any person with a 'genuine interest in or relation to the child', the child or a local authority (with the court's permission). When a child is made a 'Ward of court', the High Court can become the legal guardian and hold Parental Responsibility for the child in order to protect and safeguard the child's welfare. Adults can seek an order for protection from harassment or a non-molestation order.

II. Background

When it comes to the marriage of an adult, a forced marriage is not the same as an arranged marriage. There are clear distinctions between them. In an arranged marriage, the families of both spouses take a leading role in the arrangements, but the choice of whether to go ahead with the marriage remains the decision of the prospective spouses. However, in a forced marriage, one or both spouses do not consent to the marriage but are coerced into it. An arranged marriage can, however, become a forced marriage if there is any form of coercion. Forcing someone to marry against their will can include in some cases physical violence and/or psychological, financial, sexual and emotional pressure. In cases of vulnerable adults who lack the capacity to consent, coercion is not required for a marriage to be forced.

When it comes to the marriage of a child, the distinction between a forced marriage and an arranged marriage does not exist. Following legislation which came into force on 27 February 2023[footnote 13], it is an offence to engage in any conduct for the purpose of causing a child to marry before their eighteenth birthday, even if violence, threats or another form of coercion are not used. Such a marriage is deemed a forced marriage. (The same legislation also provides that the minimum age at which one can legally marry or enter into a civil partnership in England and Wales is 18.)

All Chief Executives, Directors and Senior Managers providing services to victims of forced marriage and 'honour'-based abuse need to be aware of the "one chance" rule. That is, their staff may only have one chance to speak to a potential victim, and that chance may be the only opportunity to save a life. This means that all professionals working within statutory agencies need to be aware of their responsibilities and obligations when they encounter forced marriage cases. If the victim is allowed to walk out of the door without support being offered, that one chance might be wasted.

Forced marriage can happen to both women and men, although many of the reported cases involve young women and girls aged between 16 and 25. There is no "typical" victim of forced marriage. They can be over or under 18 years of age, some may have a disability, some may have young children and some may also be spouses from overseas.

To address the increasing scale and extent of forced marriage, the UK Government established the Forced Marriage Unit (FMU) in 2005. The FMU is a joint Home Office and Foreign, Commonwealth and Development Office unit that provides direct assistance to victims, through information and support, as well as undertaking a full and comprehensive programme of outreach activity, raising awareness and providing advice to professionals and communities. This approach aims to ensure that people working with victims are fully informed about how to approach these cases.

Each year, the FMU receives calls in relation to a possible or actual forced marriage in several hundred cases. Cases are also reported directly to police, children and adult social care services, health, education and voluntary organisations. Unfortunately, many more cases are likely to remain unreported. However, with increased work to raise awareness, it is anticipated that more people will become aware of the support services and the advice available to them.

The majority of cases reported to the FMU to date have been linked in some way with travel to South Asian countries. However there have been numerous cases in recent years involving many other countries across the Middle East, Europe, Africa and North America, amongst others.

Forced marriages also take place here in the UK without any form of overseas element. In a large number of cases, however, forced marriage involves a prospective partner being brought into the UK from overseas or a British national being taken abroad for the purpose of a forced marriage.

Forced marriage of any person, regardless of sex, age, disability, ethnic origin or sexual orientation, is illegal in the UK. Consequently, effective handling of forced marriage and related cases should form part of existing child and adult protection structures, policies and procedures.

For further information on understanding the issues surrounding forced marriage, please refer to chapter 2 of the multi-agency practice guidelines.

Experience has identified that it usually falls to more than one specific agency to meet all of the needs of an individual, or indeed a wide group of individuals, affected by forced marriage. As a result, the aim of this guidance document is to clearly set out why a multi-agency response is critical, but also to re-emphasise how important multi-agency co-operation and closer working are, as part of the overall approach to provide support to, and protect, victims of this practice.

III. Actions for Chief Executives, Directors and Senior Managers to whom this guidance is addressed

Existing strategic bodies also need to ensure that their member agencies work effectively, using agreed policies and procedures to address this issue.

Senior management commitment

Chief Executives, Directors and Senior Managers should ensure that their organisation has:

Roles and responsibilities

Chief Executives, Directors and Senior Managers should ensure that:

Clear lines of accountability

Chief Executives, Directors and Senior Managers should ensure that:

Victim-centred approach

Chief Executives, Directors and Senior Managers should ensure that:

Effective inter-agency working and information sharing

Chief Executives, Directors and Senior Managers should ensure that:

Local safeguarding partners are likely to take a lead role in developing policies and procedures for inter-agency working and information sharing to protect adults and children from harm.

Confidentiality

A dilemma may occur because someone facing a forced marriage may be concerned that if confidentiality is breached and their family finds out that they have sought help they will be in danger. On the other hand, those facing forced marriage are often already facing significant danger because of domestic or 'honour'-based abuse, rape, imprisonment and/or other acts of threatening or menacing behaviour. Therefore, in order to protect them, it may be necessary to share information with other agencies such as the police.

Consequently, confidentiality and information sharing are extremely important for anyone threatened with, or already in, a forced marriage. Professionals need to be clear about when confidentiality can be promised and when information may need to be shared.

Circumstances sometimes arise where a child, or more probably a young person, explicitly asks a professional not to give information to their parents/guardians or others with some authority over them. Those who are 16 and above are assumed to have capacity to make decisions and their decisions should be respected. However, those under 16 may also have capacity and it is important to try where possible to respect the requests they make.

If a decision is made to disclose information to another person (usually another professional), the professional should seek the consent of the person before the disclosure. Most people will consent to the disclosure if they receive a careful explanation of why the disclosure is to be made and are assured about their safety (e.g. information will not be passed to their family) and about what will happen following such a disclosure. Whether or not the person agrees to the disclosure, they should be told if there is to be disclosure of confidential information.

Chief Executives, Directors and Senior Managers should ensure that:

Staff training and awareness raising

Chief Executives, Directors and Senior Managers should ensure that:

Signposting existing practice guidelines on forced marriage

Chief Executives, Directors and Senior Managers should ensure that:

All front-line professionals have access to, and are strongly recommended to consult, the multi-agency practice guidelines issued by the FMU (see after chapter V).

Monitoring and evaluation

Chief Executives, Directors and Senior Managers should ensure that:

In line with existing safeguarding guidance concerning the safeguarding of children and the protection of adults at risk, the effectiveness of their organisation's response to forced marriage is monitored and evaluated. This might include collecting information about the number of cases, the sources of referrals, and information about the individual, such as age and gender, together with information about the outcome of the case.

Record keeping

Chief Executives, Directors and Senior Managers should ensure that:

Risk assessment

Chief Executives, Directors and Senior Managers should ensure that:

Due to the nature of forced marriage and other forms of 'honour'-based abuse, some of the underlying principles and themes within existing guidance may inadvertently place young people and adults with care and support needs at greater risk of harm. This includes the belief that the best place for them is with their family and the practice of attempting to resolve cases through family counselling, mediation, arbitration and reconciliation.

Chief Executives, Directors and Senior Managers should ensure that:

Protecting young people and adults with care and support needs

Young people and adults with care and support needs are particularly vulnerable to forced marriage because they are likely to rely on their families for care, may have communication difficulties and may have fewer opportunities to tell anyone outside their family about what is happening to them.

Sometimes young people and adults with care and support needs have been forced to marry. Some adults with learning disabilities may not have the capacity to consent to marriage. In order to find a spouse, parents may accept a spouse whom they would normally view as unacceptable - such as someone from a lower caste or social group. Sometimes, to ensure a potential spouse is not put off, families may try to hide, downplay or make light of the person's disability. Another motive for forcing young people or adults with care and support needs to marry is to make certain that they will have someone to care for them after their parents have died.

Some young people and adults with care and support needs may be unable to consent to consummate the marriage. Sexual intercourse without consent is a serious offence, for example rape, and there are various offences under the Sexual Offences Act 2003 that might be committed against a person who lacks mental capacity.

Safeguards relating to forced marriage for young people and adults with care and support needs are essentially the same as those for young people and adults without support needs. However, agencies do have a role to play in ensuring they are safeguarded.

Chief Executives, Directors and Senior Managers should ensure that young people and adults with care and support needs receive whatever additional assistance and support they require.

Good practice in relation to this assistance and support includes:

IV: Specific issues to be considered by agencies working with, or providing services to, children and young people facing forced marriage

Existing multi-agency guidance concerning children and young people

Existing multi-agency statutory and non-statutory guidance on the subject of safeguarding children includes:

Current guidance sets out the roles and responsibilities of all agencies involved in safeguarding children and the procedures that should be adhered to by all agencies. This guidance includes information about identifying children and young people at risk of harm, discussing concerns, making referrals, undertaking initial assessments and the next steps to take.

The guidance in this chapter does not attempt to replicate existing guidance but seeks to address issues concerning children and young people threatened with, or already in, a forced marriage.

The danger of involving the family and the community

In cases of forced marriage, involving the family and the community may increase the risk of significant harm to the child or young person. The family may deny that the child or young person is being forced to marry (although after the commencement of the new legislation on 27 February 2023, this would not prevent their actions being a crime if the proposal is that the person marry before they turn 18) and may expedite any travel arrangements and/or bring forward the date of the marriage.

Any discussion and agreement reached between the family and the local authority children's social care department should only be done where it will not place the child or young person at increased risk of significant harm. In cases of forced marriage, discussion with the family, or any type of family involvement, will often place the child or young person at greater risk of harm.

In care proceedings, local authorities are required to demonstrate to the court that they have considered family members and friends as potential carers at each stage of their decision-making. However, in cases of forced marriage, professionals should exercise extreme caution around how they evidence this, considering carefully whether, for example, family group conferences are appropriate in these cases. Family group conferences should not be used in cases where a young person is at risk of forced marriage because of the physical danger and potential emotional manipulation they may experience during this type of session with their parents and other members of their family or community.

There must not be any burden placed on the child or young person to agree to a family conference.

Chief Executives, Directors and Senior Managers should ensure that staff have appropriate training in order to:

The assessment framework

The Framework for the Assessment of Children in Need and their Families provides a systematic way of analysing, understanding and recording what is happening to children and young people within their families and the wider context of the community in which they live. This framework assists professionals to decide what support a child and family may need.

The assessment has three main parts:

1. Child's developmental needs

2. Parenting capacity

3. Family and environmental factors

The Assessment Framework may not highlight any problems concerning children and young people facing forced marriage. They often come from families where the parents' capacity to provide safety, emotional warmth and stability is excellent. It is often the case that the children are high achievers at school, have good health, are well integrated into the local community and have good relations with their wider family, and may not necessarily exhibit warning signs that a forced marriage is going to take place.

Professionals working with children and young people facing forced marriage will therefore require additional training in assessing families to identify those where forced marriage may be an issue. In all cases, forced marriage must be responded to as a child protection, and safeguarding, issue.

Chief Executives, Directors and Senior Managers should ensure that:

Staff have appropriate training to enable them to effectively assess children and young people facing forced marriage using the Assessment Framework.

Safeguarding children and young people from harm by sharing information or to prevent a crime being committed

Although forced marriage is a criminal offence, there are other criminal offences that can also be committed in such cases. Perpetrators - usually parents or family members - may also be prosecuted for offences including fear or provocation of violence, controlling or coercive behaviour, virginity testing, hymenoplasty, common assault, actual bodily harm, grievous bodily harm, harassment, kidnap, abduction, theft (of passport), threats to kill, false imprisonment and murder. Sexual intercourse without consent is a serious offence, for example rape, regardless of whether or not this occurs within a marriage.

When a local authority children's social care department has a case referred to it that constitutes, or potentially constitutes, a criminal offence against a child, social workers or their managers should always discuss the case with the police at the earliest opportunity.

Where other agencies encounter concerns about a child's welfare that do or may constitute a criminal offence against a child they must consider sharing that information with local authority children's social care or the police in order to protect the child or other children from the risk of significant harm. If a decision is reached not to share information, the reasons must be recorded.

Chief Executives, Directors and Senior Managers should ensure that:

Ideally, professionals should discuss cases of forced marriage with, and seek advice from, a designated professional and/or another statutory agency. However, there may be occasions when immediate emergency action is necessary to protect a child or young person from being forced to marry or from being abducted, for example police protection or emergency protection orders (EPOs). In this case, a strategy discussion should take place as soon as possible after the immediate protection is put in place to plan next steps.

Chief Executives, Directors and Senior Managers should ensure that staff have appropriate training in order to:

The FMU is always happy to talk to frontline professionals handling cases of forced marriage at any stage in a case. The FMU offers further information and advice on the wide range of tools available to tackle forced marriage, including legal remedies, overseas assistance and how to approach victims. FMU staff may also be able to speak at conferences or run training workshops to teams of frontline professionals.

Call: 020 7008 0151 (Mon-Fri: 09.00-17.00 [UK time])

Web: www.gov.uk/forced-marriage

Address:

If you need to contact the FMU outside of these hours to request emergency consular assistance, please telephone the Foreign, Commonwealth & Development Office on 020 7008 5000.

V: Specific issues to be considered by agencies working with, or providing services to, adults with care and support needs

The danger of involving the family and the community

Involving families in cases of forced marriage may increase the risk of serious harm to an individual. The family may deny that the individual is being forced to marry and they may expedite any travel arrangements and bring forward the wedding.

Chief Executives, Directors and Senior Managers should ensure that staff receive the appropriate training in order to:

Safeguarding adults and those with support needs by sharing information when a crime may have been, or may be, committed

In addition to specific forced marriage offences there are also a number of other offences that may be committed when forcing someone to marry. Perpetrators - usually parents or family members - may also be prosecuted for offences including fear or provocation of violence, common assault, actual bodily harm, grievous bodily harm, harassment, kidnap, abduction, theft (of passport), threats to kill, false imprisonment and murder. Sexual intercourse without consent is a serious sexual offence, for example rape, regardless of whether or not this occurs within a marriage.

Chief Executives, Directors and Senior Managers should ensure that staff receive the appropriate training in order to:

The Forced Marriage Unit (FMU) is always happy to talk to frontline professionals handling cases of forced marriage at any stage in a case. The FMU offers further information and advice on the wide range of tools available to tackle forced marriage, including legal remedies, overseas assistance and how to approach victims. FMU staff may also be able to speak at conferences or run training workshops to teams of frontline professionals.

Call: 020 7008 0151 (Mon-Fri: 09.00-17.00 [UK time]) Email: fmu@fcdo.gov.uk

Web: www.gov.uk/forced-marriage

Address:

If you need to contact the FMU outside of these hours to request emergency consular assistance, please telephone the Foreign, Commonwealth & Development Office on 020 7008 5000.

Multi-agency practice guidelines: handling cases of forced marriage

1. The Purpose Of This Document

These practice guidelines were originally developed alongside the statutory guidance "The Right to Choose", which was first issued in 2008 under s63Q(1) of the Family Law Act 1996 ("the Act")[footnote 16]. The statutory guidance sets out the responsibilities of Chief Executives, Directors and Senior Managers within agencies involved with handling cases of forced marriage and strongly recommends that their staff consult these guidelines. The statutory guidance can be found just before this document.

The practice guidelines set out in this document seek to provide advice and support to front line practitioners who have responsibilities to safeguard children and protect adults from the abuses associated with forced marriage. Given that someone affected by forced marriage is likely to need the help and support of several agencies, this document seeks to set out a multi-agency response and encourage agencies to cooperate and work together to protect victims.

Under section 121 of the Anti-Social Behaviour, Crime and Policing Act 2014, forcing someone to marry is a criminal offence. It is child abuse, domestic abuse and a form of violence against women and men; preventing forced marriage should form part of existing child and adult protection structures, policies and procedures.

Each year, the Forced Marriage Unit (FMU) receives several hundred calls in relation to a possible or actual forced marriage. However, forced marriage remains a hidden practice, with many cases unreported. The topics covered in these guidelines include:

Where a victim may have a learning disability, the following areas also need to be considered:

1.2 Audience

These practice guidelines should be used by all front-line professionals and volunteers within agencies that are responsible for:

The information contained within this document may also be relevant to a wide range of non-governmental organisations and voluntary organisations that are working directly with people at risk of forced marriage and/or its consequences.

These practice guidelines provide further advice and support to front-line professionals. The statutory guidance on forced marriage (see just before this document) states that Chief Executives, Directors and Senior Managers within agencies involved with handling cases of forced marriage should strongly recommend that their staff consult these guidelines unless there are good reasons not to do so.

Forced marriage is a criminal offence under Section 121 of the Anti-social Behaviour Crime and Policing Act 2014. It affects people from many communities and cultures, so cases should always be addressed using all existing structures, policies and procedures designed to safeguard children, adults with care and support needs and victims of domestic abuse.

Existing strategic bodies also need to ensure that their member agencies work effectively, using agreed policies and procedures to address this issue.

1.4 Coverage

These practice guidelines extend to practitioners or organisations in England and Wales.

For more information about the Welsh Government's guidance and services and policy and background on violence against women and domestic abuse please visit: Violence against women and domestic abuse - Sub-topic - GOV.WALES

For more information about the Scottish Government's work to prevent and tackle forced marriage, visit: Violence against women and girls (VAWG): Forced marriage - gov.scot (www.gov.scot).

For more information about the Northern Ireland Executive's work on domestic abuse, visit: Home - Northern Ireland Executive

1.5 Definitions

For definitions of key terms relating to forced marriage, please see the definitions within the statutory guidance (Chapter I of the statutory guidance).

2. Understanding forced marriage

Forcing an adult to marry requires, in most cases, the use of a form of coercion to seek to bring a marriage about. Forcing a child to marry involves any conduct done for the purpose of causing a child to marry, even if a form of coercion is not used. The sections below explain this in greater detail.

2.1 Forcing an adult to marry

When it comes to the proposed (or actual) marriage of a person after they turn 18, there is a distinction between a forced marriage and an arranged marriage. In arranged marriages, the families of both spouses take a leading role in arranging the marriage, but the choice of whether to accept the arrangement remains with the prospective spouses. A forced marriage is a marriage in which one or both parties have not personally expressed their full and free consent to the union, and in which violence, threats or another form of coercion is used to bring the marriage about. An arranged marriage can also become a forced marriage if there is any form of coercion.

Free and full consent is consent is essential to all marriages and it may be the case that only the prospective spouses themselves will know if their consent is fully given and done so freely. Being forced into marriage can include acts of physical violence and/or psychological, financial, sexual and emotional pressure.

There is one exception to the need for violence, threats or another form of coercion to be used for the proposed marriage of an adult to be considered a forced one. This is the proposed marriage of a vulnerable adult who lacks the capacity to consent to marriage under the Mental Capacity Act 2005. Here, coercion is not required for a marriage to be forced - rather, any conduct carried out for the purpose of causing such an adult to enter into a marriage is deemed as forcing that adult into marriage.

It is also specifically an offence to practise any form of deception with the intention of causing another person to leave the UK where the aim is that, while that other person is outside the UK, violence, threats or another form of coercion will be used to cause them to marry (or, if they lack capacity to consent to marriage under the Mental Capacity Act 2005, that any conduct will be undertaken to cause them to marry). This reflects the common scenario in which someone intends to force a person into marrying overseas (where they are likely to find it harder to resist the marriage and to have less recourse to authorities who could protect them) and tricks them into going overseas by pretending that there is another reason for the trip.

Key principles for forced marriages involving adults:

2.2. Forcing a child to marry

Previous legislation

Until 27 February 2023, the legal definition of what it meant to force a child to marry and to force an adult to marry were exactly the same. It was a criminal offence to use violence, threats or another form of coercion to cause a child to marry, or if the child lacked capacity to consent to marry under the Mental Capacity Act 2005 (which does not apply by virtue of a person's age alone) then it was an offence to engage in any conduct for the purpose of causing the child to enter into a marriage.

New legislation

However, since 27 February 2023, when the provisions of the Marriage and Civil Partnership (Minimum Age) Act 2022 came into effect, the definitions of forcing a child to marry and forcing an adult to marry have differed. Everything which would count as forced marriage in relation to an adult victim still counts as forced marriage in relation to a child victim, but there are now new circumstances which count as forced marriage for a child, but not for an adult. These are that it is now an offence to carry out any conduct for the purpose of causing a child to marry before their eighteenth birthday, even if violence, threats or another form of coercion are not used. In other words, causing a child to marry, in any circumstances, is a crime.

This means that the distinction between forced marriage and arranged marriage which applies for the marriage of adults does not apply for the marriage of children. What would be regarded as arranging a marriage of an adult would be regarded as forcing a child to marry.

Reasons for the legislative change

This change reflects the fact that children are not properly in a position to consent to marry. A child may not understand that they have choices about how they lead their lives. They are less likely than an adult to understand the things which are involved in a marriage, such as intimacy. They may be less able to resist the demands placed on them by their parents and others. This may mean that the person arranging the marriage may consider that they do not need to use coercion to bring the marriage about, yet the drivers and consequences of their behaviour will be the same.

The new legislation also reflects the fact that the consequences of child marriage are particularly pernicious. Research has shown that child marriage is often associated with leaving education early (and thus running counter to the legal requirement for children to be in education or training until age 18),[footnote 17] limited career and vocational opportunities, serious physical and mental health problems, developmental difficulties for the children born to young mothers, and an increased risk of domestic abuse.[footnote 18] The UN Sustainable Development Goals also require all countries to "eliminate all harmful practices, such as child, early and forced marriage and female genital mutilations by 2030".[footnote 19]

Types of marriages

Another change introduced by the Marriage and Civil Partnership (Minimum Age) Act 2022 is that the minimum age at which someone may marry or enter into a civil partnership legally in England and Wales rises to 18 in all circumstances - previously a child could get married when they were 16 or 17 if their parents or a court agreed. Were legal marriage the only type of marriage, forced marriage legislation in relation to children would be unnecessary, because it would be impossible for a child to marry. However, children - and adults - can also take part in unofficial, (religious or customary) 'marriages' which are not recognised by the law, but which are likely to be regarded as a marriage by the parties and those close to them. Forced marriage legislation before 27 February 2023 applied to both types of marriage, and that remains the case for the new legislation from 27 February 2023. In practice, because of the increase in the minimum legal age of marriage, the new legislation will apply to unofficial 'marriages'. The key test is, as the legislation puts it, that "any religious or civil ceremony of marriage (whether or not legally binding)" must be envisaged or have taken place.

It will continue to be a case-by-case judgement for the relevant authorities as to whether a particular arrangement meets that legal test, but it would not be met by a pure cohabitation arrangement - i.e. two people living together and in a relationship, but without any ceremony, legally binding or otherwise, to formalise their union. It is important to note that in some communities, for example some Gypsy, Roma and Traveller communities, such cohabitation arrangements can be referred to by members of the community as a 'marriage'. Such language would not in and of itself engage the forced marriage legislation - it is the substance, rather than the wording, of marriage, which is important. Professionals are advised to probe whether there is indeed a marriage in such cases, or whether it is just language denoting cohabitation. Cohabitation arrangements should not, though, - in any community - be regarded as a way of evading the law, and may give rise to separate safeguarding concerns which professionals need to be aware of.

Who could be prosecuted?

The offence of causing a child to marry refers to "any conduct for the purpose of causing a child to enter into a marriage" [emphasis added]. The definition of 'causing' in this context will be for the courts to interpret on a case-by-case basis, but it is likely that this will be taken to refer to the behaviour which is involved in initiating the process of marriage, such as persuading and inducing the child to marry. It will often, although not always, be the parents who do that. Such conduct would also be likely to include deceiving the child into travelling overseas to be forced into marriage - hence, the separate offence of deceiving someone into going overseas to be forced into marriage does not apply specifically for conduct covered by the new offence of causing a child to marry.

Hence it is envisaged that a parent, relative or community member who initiates a process which results in a child marrying will be covered by this offence. That might include persuading the child to marry, or simply initiating the process without asking them, or otherwise any conduct which is critical in the marriage taking place, and but for which it would not happen.

On this principle, it is therefore unlikely that the offence would extend to people who contribute to a process which is already underway, such as people who make financial contributions towards a marriage or those who assist in practical arrangements, such as hiring out a hall. However, the position as to a particular person's role will not always be clear, so there will often be an element of judgement on a case-by-case basis.

On the same basis, the offence is also unlikely to cover the activities of registrars and celebrants in facilitating the proceedings of a legal marriage. As a 16- or 17-year-old in England and Wales is no longer able to enter into a legal marriage this issue should not arise for marriages which are proposed to take place in England and Wales.

However, the offence will apply to marriages which take place in Scotland or Northern Ireland if they involve a 16- and 17-year-old who is habitually resident in England and Wales. That is because the minimum age of marriage is 16 in both Scotland and Northern Ireland[footnote 20]. It is very unlikely that a registrar or celebrant in Scotland or Northern Ireland would be prosecuted for conducting a marriage in those circumstances.

Professionals should be aware that in some Roma communities it can sometimes be the case that a young couple will consummate their (hidden) relationship in order that their parents, wishing to avoid a situation in which pre-marital sexual relations occur, will organise an informal ceremony which confirms the relationship as a marriage in the eyes of the parents and the community. Professionals should give consideration to these issues in deciding whether the offence of forced marriage has been committed.

The terms of the offence do not absolutely rule out the prosecution of the children who are themselves getting married. There might be some rare circumstances - for example, a 17-year-old arranging for a 15-year-old to marry them - where a prosecution would be appropriate. But in practice, and in the vast majority of cases, it is not the intention that the children, who are the victims in these cases, should be covered by the offence.

The rest of this chapter - and indeed of this guidance - refers in its use of 'forced marriage' to both the marriages of children and of adults.

2.3 Frequency

Forced marriage can happen to both women and men, but statistics show that it is predominantly women and girls who are victims and that many of the reported cases involve young women and girls aged between 16 and 25. There is no "typical" victim of forced marriage. They are over and under 18 years of age, some may have a disability, some may have young children and some may also be spouses already in the UK and/or from overseas.

The majority of cases reported to the FMU to date have involved South Asian countries, however there have been numerous cases in recent years involving many other countries across the Middle East, Europe, Africa and North America, amongst others. A number of forced marriages also take place here in the UK without any form of overseas element, while a large number involve a prospective partner being brought into the UK from overseas or a British national being taken abroad for the purpose of a forced marriage.

Since 2012, the FMU has given advice or support related to a possible forced marriage in several hundred cases each year. Cases are also reported directly to the police, children's and adult social care services, health, education and voluntary organisations. Unfortunately, many more cases are likely to remain unreported. However, with increased awareness raising, it is anticipated that more people will become aware of the support services and the advice available to them.

2.4 Drivers of forced marriage

Perpetrators who force children or other family members into marriage often try to justify their behaviour as 'protecting' their children, building stronger families and preserving so-called cultural or religious beliefs. When challenged on this practice, they often do not see anything wrong in their approach. However, the act of forcing another person into marriage can never be justified on religious grounds: every major faith condemns the practice of forced marriage and requires full and free consent to marriage to be given.

Perpetrators are often convinced that they are upholding the cultural traditions of their home country, when in fact these practices and values may have long since changed in their countries of origin. There are others who are placed under significant pressure from their extended family to ensure their children or other family members are married. In some instances, an agreement - sometimes tied to land ownership - may have even been made about marriage during the parties' infancy.

Many young people will then go through their entire childhoods with the expectation that they will have to marry someone of their parents' or other family members' choosing. What needs to be communicated to all of those at risk is that forcing someone to marry is a criminal offence and that they have a fundamental human right to be able to choose their future spouse.

Some of the key motives that have been identified are:

Key principles:

2.5 So called 'honour'-based abuse

The terms 'honour' crime, 'honour'-based abuse and 'honour'-based violence comprise a variety of offences (mainly but not exclusively against women and girls), including forced marriage, female genital mutilation (FGM), virginity testing, hymenoplasty, controlling and coercive behaviour, physical assault (which can cover practices such as breast ironing/breast flattening), imprisonment and murder where the victim is being punished by their family or community for undermining what they perceive to be the correct code of behaviour.[footnote 21] Such behaviour is also likely to amount to domestic abuse. Despite the use of the term 'honour', there is no honour in abuse, and cultural sensitivities should not get in the way of tackling this issue.

In transgressing this code, according to the view of the family or community, the victim shows that they have not followed their family's and/or community's rules of behaviour and this is said to be to the 'shame' or 'dishonour' of the family and/or community. 'Honour'-based abuse can be distinguished from other forms of abuse, as it is often committed with some degree of approval and/or collusion from family and community members. The role of the family and community in perpetrating and condoning abuse means that victims are likely to be experiencing abuse from multiple perpetrators, often not only in the UK.

Survivors of 'honour'-based abuse are often unable to return to their families and communities even after the immediate risk has been removed and, when they do, they risk being further isolated. Migrant women can be particularly vulnerable because their lack of personal networks can leave them alone and without support if entirely removed from their communities.

'Honour'-based abuse can be a trigger for a forced marriage. The family or community may force a person into marriage to control their behaviour and protect perceptions of honour. As with all forms of 'honour'-based abuse, women and girls are the main victims of forced marriage, however there is complexity in the concept of honour. Men may be at heightened risk of forced marriage and 'honour'-based abuse if they identify as LGBT, and women may be perpetrators as well as victims in certain circumstances. There may also be multiple victims, such as siblings who are at risk of forced marriage and 'honour'-based abuse.

Expectations of how a person should behave are often embedded from a young age. Forced marriage cases can therefore be challenging because a victim may not identify what they have experienced as a forced marriage, impacting the initial stage of identification and the ability of professionals to recognise the victim's needs effectively. This is part of the reason for the extension of the forced marriage legislation on 27 February 2023 to cover any conduct undertaken to cause a child to enter into a marriage, even if violence, threats or coercion are not used. This means that the child - or indeed, anyone else - does not need to identify the marriage as a forced one, and the fact that the child does not realise that they can object should not be a barrier to the prosecution of the person arranging the marriage: if the child is caused to marry, it is a forced marriage. Where forced marriage is motivated by perceptions of honour, it is often part of a wider pattern of emotional abuse, identifiable by efforts to control and monitor the victim, such as restrictions of movement, minimised contact with the opposite sex and emotional and physical abuse.

2.6 Additional risks

There is evidence to suggest that there may be factors that increase the risk of someone being forced into marriage, including bereavement within the family. Occasionally, when a parent dies, especially the father, the remaining parent and/or wider family members may feel there is more of an urgency to ensure that the children are married. A similar situation may arise within single parent households or when a step-parent moves in with the family. If an older child (particularly a daughter) refuses to marry then younger female siblings may be forced to marry in order to protect the 'family honour' or to fulfil the original contract. This is also known as becoming the 'replacement bride or groom'.

Women and girls may also face an increased risk of forced marriage if they have disclosed sexual abuse. Her family may feel that this has brought shame on her and that ensuring she is married may be the only way to restore 'honour' to the family. They may also feel that marriage will put a stop to the abuse.

A person may be at a greater risk if they identify as lesbian, gay, bisexual or transgender (LGBT), as their wider family may feel that by forcing the individual into marriage, their sexuality or gender identity will not be questioned. Parents may also do this out of a mistaken belief that this will "cure" their son or daughter of what they perceive to be abnormal sexual practices.

Isolation is one of the biggest problems facing victims trapped in, or under the threat of, a forced marriage. They may feel there is nobody they can trust to keep this secret from their family and they have no one to speak to about their situation - some may not be able to communicate in English. These feelings of isolation are similar to those experienced by victims of other forms of domestic and child abuse. It is only rarely that someone will disclose the fear of forced marriage. Consequently, they will often come to the attention of practitioners for behaviour that is consistent with distress.

A learning or physical disability or illness may also add to a young person's, or an adult's, vulnerability and may make it more difficult for them to report abuse or to leave an abusive situation. Their care needs may make them entirely dependent on their carers.

2.8 Male victims

Approximately 20% of calls to the FMU relate to male victims. In some cases, both parties in a marriage will be forced into that marriage by family or community members.

Men and boys may be particularly reluctant to seek help because they feel embarrassed or fear they won't be believed. The perception that forced marriage and related abuses only affect women is harmful to men and boys who do need help. Many men and boys feel ashamed about seeing themselves as victims. They may perceive this as weakness or fear being seen as weak by others. They may also feel that they are in the wrong for not wanting to marry, when it is something they are made to believe they should want.

Even when they do seek help, male victims of forced marriage often have difficulty accessing support services, as many organisations dealing with domestic and 'honour'-based abuse only support women.

However, the Government has introduced a new duty (within Part 4 of the Domestic Abuse Act 2021) on Tier 1 Local Authorities to provide support to victims of domestic abuse and their children within safe accommodation, which is fully funded. Under this new duty Tier 1 authorities will be required to work with partners including specialist services to assess the needs and commission the appropriate support for all victims of domestic abuse and their children including male victims.

Men with disabilities are particularly vulnerable to forced marriage, as parents may decide their son needs a wife to care for him.

2.9 LGBT Victims

If an individual is known or suspected to be lesbian, gay, bisexual or transgender this can be a driver for forced marriage. In some cases, families believe this will "cure" the person. In other cases, they are motivated by trying to cover up the person's identity to avoid shame. This can involve forcing someone to marry a specific person, or more general pressure to marry someone of the opposite sex.

Families may refuse to acknowledge these identities as legitimate and continue to put pressure on the individual to marry. They could be motivated by keeping prior agreements of marriage with family members or securing a visa for the spouse. The intended spouse may be unaware of the victim's LGBT identity or may be held responsible for failing to change it. In many cases, their marriages are harmful to both parties.

LGBT victims may be reluctant to seek support due to the stigma and fear of their identities becoming known more widely. Victims who do seek help might not disclose their sexual orientation or gender identity. They may have conflicting feelings about their own identities, making them particularly vulnerable to emotional pressure to go through with a forced marriage. They could be made to feel that accepting a forced marriage will allow them to lead a "normal life".

2.10 Consequences

Women and girls who are forced to marry may find it very difficult to initiate any action to leave the marriage and may be subjected to repeated rape (sometimes until they become pregnant) and ongoing domestic abuse within the marriage. In some cases they suffer violence and abuse from the extended family, often being forced to undertake all the household chores for the family.

Many girls and young women are withdrawn from education early. Some are taken and left abroad for extended periods, which isolates them from help and support - this limits their choices so that often they will go through with the marriage, seeing this as the only option. Their interrupted education limits their career choices. Even if the woman manages to find work, she may be prevented from taking the job or her earnings may be taken from her. This leads to economic dependence, which makes the possibility of leaving the situation even more difficult. Some may be unable to leave the house unescorted - living virtually under "house arrest".

Victims frequently end up trapped in a relationship marred by physical and sexual abuse. The impact this has on children born to the parties to the marriage is immense. Children may learn that it is acceptable to be abusive and that violence is an effective way to get what you want. They may learn too that violence is justified, particularly when you are angry with someone. Children experiencing the effects of abuse (which includes witnessing abuse) can be traumatised because experiencing persistent violence undermines a child's emotional security and capacity to meet the demands of everyday life. Children's academic abilities can also be affected. Witnessing violence as a child is often associated with depression, trauma-related symptoms and low self-esteem in adulthood. Indeed under section 3 of the Domestic Abuse Act 2021, children who see, hear or experience the effects of domestic abuse (into whose definition forced marriage almost always falls) are recognised as victims of domestic abuse.

Both male and female victims of forced marriage may feel that running away is their only option. For many, especially those from black, minority ethnic and refugee backgrounds, leaving their family can be especially hard. They may have minimal to no experience of life outside the family, so seeking refuge elsewhere may mean they lose their children and support network. For others, finding accommodation for themselves and their children can also be difficult - especially for those who do not have leave to remain in the UK and therefore do not have recourse to public funds.

Living away from home with minimal support can make a person, particularly a woman, more isolated, which increased the likelihood that they will return to the abusive situation. In addition, leaving their family (or accusing them of a crime, or simply approaching statutory agencies for help) may be seen as bringing shame on their 'honour' and on the 'honour of their family' in the eyes of the community. This may lead to social ostracism and harassment from the family and community. For many, this is simply not a price they are prepared to pay.

Those who do leave still often live in fear of their own families, as some families may go to considerable lengths to find them and ensure their return. Families have also been known to solicit help from others within the community to find victims who have run away, or involve the police by reporting them missing, or on occasion falsely accuse the victim of a crime, for example theft. Some families have also traced individuals through medical and dental records, bounty hunters, private investigators, local taxi drivers, members of the community and shopkeepers, or through National Insurance numbers, benefit records, and school and college records. Sometimes, having traced them, the family may subject them to further violence, abuse or worse, including murder, claiming it to be a so called 'honour' killing.

If a spouse has not been informed that their partner has learning disabilities, it is questionable whether they have given informed consent to the marriage. Questions about informed consent can also arise if the spouse is unaware that they are being married into the role of a full-time carer. The spouse may also be vulnerable to abuse from the family of the person with learning disabilities.

A person with learning disabilities who is forced into marriage could later be abandoned by their spouse. This can create feelings of rejection, stigmatise the person and possibly lead to the loss of a primary carer. This abandonment could be because:

(a) the spouse was unaware of all of the circumstances of the marriage; and/or

(b) they simply used the marriage to facilitate an improvement in their immigration status.

2.11 Potential warning signs or indicators

Both men and women facing forced marriage may become anxious, depressed and emotionally withdrawn with low self-esteem. They may come to the attention of practitioners for a variety of reasons, some of which are described in the diagram below. Whilst the factors set out in this diagram may be an indication that someone is facing forced marriage, it should not be assumed that it is a forced marriage simply on the basis that someone presents with one or more of these warning signs. These signs may indicate other types of abuse that will also require a multi-agency response, or in some cases they may indicate other issues.

Below are potential warning signs or indicators. These indicators are not intended to be an exhaustive list.

Education

Employment

Family History

Health

Police

There have been occasions when women have presented with less common warning signs such as cut or shaved hair as a form of punishment for disobeying or "dishonouring" her family. In some cases, a girl may report that she has been taken to a private practice to be examined to see if she is a virgin. Some women and girls may also have 'hymen repair' procedures carried out in order to prove that they are 'pure' on their wedding night. Both of these practices have been criminal offences since 1 July 2022.[footnote 24]

2.12 Forced to travel overseas

If an individual is taken abroad for the purpose of a forced marriage, it may be their first experience of travelling overseas. The difficulties they may encounter may be numerous, particularly if they want to return to the UK, or seek assistance locally. They may find it impossible to communicate by telephone, email, or social media and may not have direct access to their phone, passport and money. Women and girls in particular may not be allowed to leave the house unescorted. They may not know the address that they are being held at or be able to speak the local language.

Often individuals find themselves in remote areas and even getting to the nearest road can be extremely hazardous. They may not be able to receive the level of assistance they expect from the local police, neighbours, family, friends or taxi drivers, who may seek to return them to their family. Some find themselves subjected to violence or threats of violence.

Even where authorities in the UK are aware of the whereabouts of a British national overseas, it may not be possible to safely contact them or provide suitable support or assistance to them, including help to return to the UK. It is therefore always advisable to warn victims who are at risk of a forced marriage not to travel overseas.

Laws and attitudes to marriage in other countries can be different to those in the UK. When dealing with cases with an overseas element, care should be taken not to disclose information to any overseas authority (such as the police or immigration) that could place the person in further danger, for example disclosure about previous or current relationships in the UK.

Camille's story

"I was 16 when my dad took me to Afghanistan. He told me it was to visit my grandfather who was sick but when we got there it was all about marriage. I was told straight away that I was to marry my cousin, Samir, in two weeks' time; he was my uncle's eldest son and 7 years older than me. I felt sick and told my dad that I was too young. I wanted to go home, back to school and my friends but he said that it had been decided years ago, there was no negotiating."

Camille sent a message via WhatsApp to her friend to say what was happening and she told her teacher. The teacher called the Forced Marriage Unit, who referred the case to social services. They arranged for a Forced Marriage Protection Order (FMPO) to be served on her mother in England to ensure Camille's safe return to the UK. Camille lived with her parents with the FMPO in place. She went on to become a graphic designer, living independently.

2.13 Dual Nationality

Some British nationals may also hold the nationality of another country at the same time; they are considered a dual national. This may include holding a passport or other form of travel document issued by the country of their other nationality.

The Foreign, Commonwealth and Development Office (FCDO) would not normally offer support to a British national in the country of their other nationality (for example a dual US-British national in the USA). But an exception may be considered where an individual is considered vulnerable and the FCDO has humanitarian concerns. This includes cases involving forced marriage. But the help that the FCDO can provide will depend on the circumstances of the case and the country of the other nationality agreeing to it.

Some countries do not recognise dual nationality and are likely to consider, and treat, dual nationals in the country of their other nationality solely on the basis of their non-British nationality.

Key principles:

2.14 Forced Marriage Unit (FMU)

The FMU is a joint FCDO and Home Office unit. It runs a public helpline that provides confidential advice and support to victims and potential victims of forced marriage, and to practitioners handling cases of actual or potential forced marriage. Caseworkers in the FMU receive training on the cultural, social and emotional issues surrounding forced marriage. The FMU also has a caseworker who leads on cases involving people with learning disabilities.

In the UK, the FMU offers information and support to anyone who is concerned that they may be forced into marriage and can discuss their options with them.

Overseas, the FMU may be able to assist British nationals facing forced marriage abroad by working with the FCDO's network of Embassies, High Commissions and Consulates to help them reach a place of safety and return to the UK if they wish.

The FMU can assist non-British nationals facing forced marriage abroad but only by referring them to local organisations that can help or by advising statutory agencies in the UK.

The unit also works with other government departments, statutory agencies and voluntary organisations to develop effective policy for tackling forced marriage. It runs outreach programmes raising awareness amongst frontline practitioners such as police and social workers across the UK. It also works in partnership with community organisations and voluntary organisations to tackle forced marriage.

The FMU can help those who have already been forced into marriage to explore their options, including assisting those who are being forced to sponsor a spouse's visa for settlement in the UK.

Anyone being forced to sponsor a visa should contact the FMU as soon as possible.

Some cases of forced marriage are brought to the attention of professionals for the first time when a victim is forced to act as a sponsor for their spouse's immigration to the UK. They are frequently reluctant to tell the Home Office (UK Visas and Immigration) that it was a forced marriage because of threats and fear of reprisals from their family. A person whose application to enter the UK as a spouse is refused has a right to be told the reasons why - and the right to appeal against the decision. However, anyone in this situation can contact the FMU to discuss their situation confidentially. They should be encouraged to do this at the earliest possible stage. The FMU will not share information with a visa applicant without explicit consent from the sponsor.

If you believe someone has been forced to sponsor a visa, you can also report this as an immigration crime:
Report an immigration or border crime - GOV.UK (www.gov.uk)
The FMU is always happy to talk to frontline professionals handling cases of forced marriage at any stage in a case. It can offer further information and advice on the wide range of tools available to tackle forced marriage, including legal remedies, overseas assistance, and how to approach victims. FMU staff can also speak at conferences or run training workshops for teams of frontline practitioners. Resources, including downloadable leaflets in a range of languages, and posters, can be found at: www.gov.uk/forced-marriage.

Call: 020 7008 0151 (Monday-Friday: 09.00-17.00 [UK time])

Call from abroad: 0044 20 7008 0151

Email: fmu@fcdo.gov.uk

Web: www.gov.uk/forced-marriage

Address:

If you need to contact the FMU outside of these hours to request emergency consular assistance, please telephone the Foreign, Commonwealth & Development Office on 020 7008 5000.

3. General action to be taken in all cases

Forced marriage cases can involve a variety of complex and sensitive issues that should be handled by a child or adult protection specialist, who, where possible, should also have additional expertise in forced marriage. Statutory guidance on forced marriage (see just before Chapter I) states that all organisations should have "a lead person with overall responsibility for safeguarding children and for protecting adults with care and support needs - where possible the same person should lead on forced marriage".[footnote 27] Where possible, front line staff should contact this specialist immediately. However, there may be occasions when they will need to gather some information from the person to establish the facts themselves in order to assist the referral.

All professionals working with suspected or actual victims of forced marriage and 'honour'-based abuse need to be aware of the "one chance" rule. That is, they may only have one opportunity to speak to a victim or potential victim and may possibly only have one chance to save a life. As a result, all professionals working within statutory agencies need to be aware of their responsibilities and obligations when they are faced with forced marriage cases. If the victim is allowed to leave without the appropriate support and advice being offered, that one chance might be wasted.

First steps in all cases:

Key principles

Best practice

Do not:

Send them away.

Approach members of their family or the community - unless it involves a victim with a learning disability and you need to work alongside the family in assessing capacity.

Share information with anyone without the victim's express consent, unless it is in a child's best interest or in the public interest.

Breach confidentiality - unless there is an imminent risk of serious harm or threat to the life of the victim, the victim is a child at risk, or it is in the public interest.

Attempt to be a mediator or immediately encourage mediation, reconciliation, arbitration or family counselling.

4. Information required for all cases

Ideally, all information should be gathered by a police or social services trained specialist. However, there may be occasions when a person is going overseas imminently and as it is an emergency, an education or healthcare professional may need to gather as much information as possible directly from the victim (see Chapter 3 for information on the "one chance" rule. In these cases, the information should be passed on to police, social services and the Forced Marriage Unit (FMU). All information should be stored in accordance with safeguarding children and adults protection policies and procedures.

The case may be reported by a third party or the person under threat - whoever reports the case, you should:

Obtain details of the person making the report, their contact details, and their relationship with the individual under threat.

Obtain details of the person under threat including the following key information to be captured:

Obtain a list from the person under threat of all those friends and family who can be trusted and their contact details.

Establish a code word to ensure you are speaking to the right person.

Establish a way of contacting them discreetly in the future that will not put them at risk of harm.

Obtain any background information including schools attended, involvement by adult or children's social care, doctors or other health services etc.

Record details about any threats, abuse or other hostile action against the person, whether reported by the victim or a third party.

Obtain a recent photograph and any other identifying documents. Document any other distinguishing features such as birthmarks and tattoos etc.

Establish the nature and level of risk to the safety of the person (e.g. Is she pregnant? Do they have a secret boyfriend or girlfriend? Are they already secretly married?).

Establish whether there are any other family members at risk of forced marriage or if there is a family history of forced marriage and abuse.

Obtain any social media handles e.g. Twitter, Facebook, Instagram etc.

If the person at risk is going overseas imminently:

A photocopy of their passport must be requested for retention. Where possible, encourage the individual to keep details of their passport number, including the place and date of issue.

Gather as much information as possible about the family - ensure this is gathered discreetly - which needs to include:

Full name and date of birth of the person under threat

Father's and/or mother's name

Address where they may be staying overseas and name of the head of this household (if known)

Potential spouse's name (if known)

Date of the proposed wedding (if known)

Name of the potential spouse's father (if known)

Addresses of the extended family in the UK and overseas

Information that only they would be aware of (if the victim is a British national, this may assist any subsequent identity check in case another person of the same age and gender is produced pretending to be them).

Details of any travel plans and people likely to accompany them.

Names and addresses of any close relatives remaining in the UK.

Safe means by which to contact them e.g. a mobile phone.

Details of a third party that they are in contact with, in case the person contacts them whilst overseas or on their return.

Estimated return date. Ask that they contact you without fail on their return.

Written statement by the person explaining that they want the police, adult or children's social care worker, a teacher or another third party to act on their behalf if they do not return by a certain date.

Key principles:

If the family are approached, they may deny that the person is being forced to marry (although after the commencement of the new legislation on 27 February 2023, this would not prevent their actions being a crime if the proposal is that the person marry before they turn 18); they may move the individual concerned to another location, or they may expedite any travel arrangements and ultimately bring the marriage forward.

Share details of the case, including full family history, with the FMU. Encourage the person to get in touch with the FMU. FMU provides advice and support to anyone who has been or fears that they may be forced to marry.

The Data Protection Act and the UK General Data Protection Regulation (the data protection legislation) provide for the circumstances in which personal data may be provided to a third party. The FMU takes its responsibility for data protection very seriously. It will only disclose information to a third party when doing so is in accordance with data protection legislation. Examples of where it may provide information to a third party without consent may include but are not limited to the following: to the police where there is a risk to the victim's life; or to social services where a child or adult without capacity is suffering, or is at risk of significant harm. Information will not be provided to friends, family or other third parties without consent, outside of these provisions. The FMU Privacy Notice describes how the unit processes personal data[footnote 29].

The person may be a dual national and have two passports or, if they are under 18 years old, they may be listed on their parents' foreign passport.

British Embassies and High Commissions can only provide consular assistance to British nationals or, in certain circumstances Commonwealth nationals. They cannot help people of other nationalities overseas, even if they live in the UK or have close connections to the UK. This includes where a non-British national leaves the UK to be forced into marriage overseas.

Encourage the victim to provide contact details to the agency and professional handling their case (where relevant).

Encourage the victim or potential victim to memorise the FMU helpline number (+4420 7008 0151) email address ( fmu@fcdo.gov.uk) and if possible the location and telephone number of the nearest British Embassy, Consulate, or British High Commission in the country they are going to. Inform victims that they can also contact the FCDO by phoning +44 207 008 5000 from anywhere in the world 24/7.

If they are not a British national, advise them to contact the FMU, who can provide details of suitable NGOs overseas and the details of the Embassy of their own nationality.

Advise they take a mobile phone that will work overseas and which they can keep hidden. If possible, enter emergency numbers into this phone.

Advise they write down emergency numbers and keep them hidden in their luggage.

Encourage them to provide you with details of a trusted friend/advocate in the UK who they will be keeping in touch with whilst overseas, who will act on their behalf, and whom you can approach if they do not return. Establish contact with the friend or advocate before the person under threat departs and request that the friend or advocate makes a written statement of their support.

Advise them to take emergency cash for the country of destination, in case problems arise in that country, together with contact details of someone there they can trust to help them.

Ascertain whether they are dual nationals, as they may have two passports. Remind them about the implications of dual nationality (see chapter 2.13).

Advise them to contact the FMU.

5. Good practice: keeping victims safe

All professionals working with suspected or actual victims of forced marriage and 'honour'-based abuse need to be aware of the "one chance" rule. That is, they may only have one opportunity to speak to a victim or potential victim and may possibly only have one chance to save a life. As a result, all professionals working within statutory agencies need to be aware of their responsibilities and obligations when they are faced with forced marriage cases. If the victim is allowed to leave without the appropriate support and advice being offered, that one chance might be wasted.

5.1 A victim-centred approach

5.2 The danger of involving the family and community

Involving families in cases of forced marriage (i.e. visiting the family to ask them whether they are intending to force their child to marry or writing a letter to the family requesting a meeting about their child's allegation) is dangerous:

5.3 Where to hold interviews

5.4 Explaining the options available to people facing forced marriage

If someone fears they may be forced to marry, they have limited choices:

If someone is already trapped in a forced marriage, they have limited choices:

These are often very difficult choices to make. There may be a serious risk of harm, especially for women, if they choose to return to the family or stay within the marriage.

To leave and start a new life can make them extremely vulnerable. Their family or spouse may search for them through routes such as housing records, benefit records, National Insurance Numbers, employment records and health records - however, these records can be protected. Other issues such as having young children or younger siblings will affect the options available to them and this may limit their choices further. For many people, prosecuting their family is something they simply will not consider.

If the victim is not a British National, fleeing the marriage and applying to remain in the UK is a complicated process and requires professional immigration advice.

For many victims from overseas, returning to their country of origin is not an option - they may be ostracised, subjected to violence or even killed. These risks should be explained, even if the effect of doing so is to exclude this option.

Many people, especially women, may be extremely frightened by contact with any statutory agency, as they may have been told that the authorities will deport them and/or take their children from them. Professionals need to be extremely sensitive to these fears when dealing with a victim from overseas, even if they have indefinite leave to remain or a right of abode, as they may not be aware of their true immigration position. These circumstances make them particularly vulnerable.

If it is discovered that a person may be in breach of immigration rules (for example if they are an overstayer), remember that they may also be the victim of a crime and be traumatised as a result. The police and safeguarding professionals should always treat victims of crime as victims first and foremost, regardless of immigration status.

Male victims of forced marriage may have difficulty in being taken seriously. If they then wish to leave the family home, refuge accommodation tends to be limited for men so the use of hostels may be the only alternative.

5.6 Assessing Capacity

It may not always be clear whether or not a person has the capacity to consent to marriage. It is essential that the specific sections of these guidelines relating to people with learning disabilities are followed whether or not the person has capacity. This is because a person with a learning disability with capacity will need more specialised support than someone without a learning disability. Not following the specific guidelines or making assumptions about how the person has reached the decision to marry may in fact put them at increased risk.

Capacity to consent to marriage can be assessed in accordance with the Mental Capacity Act 2005 (see chapter 7 for further detail). It is useful to remember that "In some cases people with learning disabilities may appear to be more able than they are. They may communicate in such a way that masks their disability. Their learning disability may therefore not be taken into consideration and the correct services might not be put into place." (Care Services Improvement Partnership (2007) 'Positive Practice, Positive Outcomes: a handbook for professionals in the criminal justice system working with offenders with learning disabilities.')

Local areas can devise tools for assessing capacity and it may be beneficial to incorporate a multi-agency approach. Suggestions for questions to ask in assessing capacity to marry include:

5.7 Confidentiality and sharing information safely

A dilemma may occur because someone facing a forced marriage may be concerned that if confidentiality is breached and their family finds out that they have sought help they will be in serious danger. On the other hand, those facing forced marriage are often already facing serious danger because of domestic or 'honour'-based abuse, rape, imprisonment and other crimes. Therefore, in order to protect them it may be necessary to share information with other agencies such as the police.

Consequently, confidentiality and information sharing are extremely important for anyone threatened with, or already in, a forced marriage. Professionals need to be clear about when confidentiality can be promised and when information may need to be shared.

Circumstances sometimes arise where a child, or more probably a young person, explicitly asks a professional not to give information to their parents/guardians or others with some authority over them. Those who are 16 and above are assumed to have capacity to make decisions and their decisions should be respected. However, those under 16 may also have capacity and it is important to try where possible to respect the requests they make.

If a decision is made to disclose information to another person (usually another professional), the professional should seek the consent of the person before the disclosure. Most people will consent to the disclosure if they receive a careful explanation of why the disclosure is to be made and are assured about their safety (e.g. information will not be passed to their family) and about what will happen following such a disclosure. Whether or not the person agrees to the disclosure, they should be told if there is to be disclosure of confidential information.

Consider:

From time to time, professionals may be asked to make exceptional disclosures, for example to police colleagues or other agencies to assist a criminal investigation. The Data Protection Act 2018 and the UK General Data Protection Regulation (UK GDPR) provides an exemption from certain requirements of that Act in particular circumstances, including for the purposes of the prevention or detection of crime. This can enable disclosures to be made without the consent of the subject. This is important as in some cases it may not be possible to obtain someone's consent - for example if they are overseas. Professionals should seek advice from their legal department or data protection officer.

In cases of forced marriage, it is important that agencies work together to help victims; inevitably, this will involve sharing information safely and confidentially. There may be occasions when a professional is not able to obtain someone's consent in order to share sensitive information with other agencies, for example when the person is overseas. In these cases, information should be shared if there is concern that a crime may be committed and you are satisfied that the organisation you are sharing the information with can keep the information secure.

There may be occasions when the person's family members ask a third party, for example a family friend, councillor, MP or someone with influence within the community, to request information from practitioners. The third party may have been given a very plausible reason by the family for needing to know the whereabouts of the person, for example the illness of a close relative, and the third party may unwittingly think they are helping them. These requests are often made by telephone and rely on the person making the request persuading a professional that they are authorised to receive information. Do not share this information.

Do not:

Overlook possible breaches of confidentiality including leaks of information from within your organisation, from records, from interpreters and from communications with external agencies and organisations.

Share information with members of the person's family, others within their community or members of the public, without the express consent of the person involved.

Give details of the case to the media without the express consent of the person involved.

5.8 Medical examinations

In some cases, it may be necessary to arrange a medical examination for psychological, emotional or physical illness as part of a protection order which has been obtained; in other cases, a person may require attention to injuries for treatment or evidential purposes. It may not be advisable to call or visit a medical practitioner from the local community as this may threaten the security of the victim.

The report of the medical examination, together with records from other agencies and police statements, may provide police with vital evidence in a person's case (especially if they are a spouse from overseas). It is advisable in all cases where injuries are apparent to encourage the person to have those injuries documented for future reference.

An examination of a child or young person should be conducted in accordance with safeguarding children procedures and should normally be carried out by an appropriate professional.

5.9 Making enquiries

There may be occasions when it is necessary to make enquiries about someone, for example if they are being held within the home or have gone missing. In these circumstances, it is important to make discreet enquiries before approaching the family. Care is needed not to reveal that enquiries are related to forced marriage issues. If the fact that the enquiries relate to forced marriage needs to be shared, this should only be shared with professionals who are aware of the need to handle such information appropriately.

Gathering information, in a confidential manner, about the person and the families involved, may be difficult. In general, enquiries should be undertaken by police officers with assistance from social workers.

In handling these cases, agencies need to liaise closely with the FMU and then gather information about the family discreetly.

Due to the nature of forced marriage and 'honour'-based abuse, some of the principles and themes within existing safeguarding guidance (which is not specific to 'honour'-based abuse and forced marriage) may inadvertently place those facing forced marriage at greater risk of harm. This includes the principle that the best place for a young person is with their family and the practice of attempting to resolve cases through family counselling, mediation, arbitration and reconciliation.

In cases of forced marriage, it is important that agencies do not actively initiate, encourage or facilitate family counselling, mediation, arbitration or reconciliation - whether offered by community councils, religious groups or professional groups. There have been cases of women being murdered by their families during mediation. Mediation can also place someone at risk of further emotional and physical abuse.

Family group conferences are not normally appropriate in cases of forced marriage because they will often place the child or young person at greater risk of harm.

There may be occasions when someone insists on meeting with their family. Any meetings should take place in a safe location, supervised by a trained/specialist professional with an authorised accredited interpreter present, as families will sometimes threaten the person in their native language.

If someone has left the family home, allowing them to have unsupervised contact with their family may be extremely dangerous. Families may use the opportunity to subject the victim to extreme physical or mental duress or take them overseas regardless of any protective measures that may be in place.

5.12 Personal safety advice and devising a strategy for leaving home

Research shows that leaving home is the most dangerous time for women experiencing domestic abuse and this is often the case when someone flees a forced marriage. Therefore, if someone is planning to leave or the perpetrators suspect they might leave, the person planning to leave should take measures to ensure their safety.

Even if someone is not ready or willing to leave, they should still be advised of their options. They should be helped with safety planning so that they can take measures to protect themselves at home, including making arrangements to leave home in an emergency if necessary.

Refer them, with their consent, to appropriate local and national support groups, counselling services and (where applicable) women's groups that have a history of working with survivors of domestic abuse and forced marriage.

Get the person to think about:

When devising a strategy for someone aged 16 or over to leave home, they should:

If the person is leaving the family home:

Do not:

Re-house locally unless specifically requested after all the risks of harm have been explained to the person.

Allow them to return to their home unless a risk assessment has been carried out.

Allow a woman to be accompanied by her children when returning to the family home to collect possessions.

Personal possessions should include:

Ask them if they want anyone to be told that they are safe and well - if so, who? What information do they want given out?

Many people who remain in contact with their families once they have left home continue to be subjected to emotional pressures. This may include stories about the illness or death of parents, relatives or siblings. If such a message is received, police/social services should check the validity of the information if the person wishes but advise against contact with the family.

Sometimes families use organised networks that will track their children. These networks may include family and community members, bounty hunters and taxi drivers, together with people who have access to records such as staff from benefits offices, GP surgeries and local housing authorities. There may be occasions when practitioners unwittingly give confidential information to those searching for the person.

5.13 Missing persons and those who run away

People, especially those under 18, who leave home to escape a forced marriage, or the threat of one, often present specific difficulties for the police and other agencies such as children's social care. Police may feel they should inform families if the young person is found. On occasion, police and children's social care have faced criticism both for failing to share information about a young person who has run away from home and for giving them practical support and protection. Ultimately, however, the first concern should be for the welfare of the young person. When a person is found, the police and other agencies may only inform the family that the person is safe, but not their location and other details.

Someone facing a forced marriage is at risk of significant harm if they are returned to their family. There have been incidents where families have killed the woman or young person after they have been located. In these situations, police and children's social care should feel confident about justifying their actions, because experience shows that if information is shared with their family and friends it may place the person in danger.

Some families go to considerable lengths to find their children who run away and some may use subterfuge to locate and return them. For example, some families may falsely accuse a missing person of a crime (for examples theft) in the expectation that the police will locate the person for them.

There may be occasions when someone's family asks a third party, such as a family friend, councillor, GP, MP or someone with influence in the community to request information from a practitioner. The third party may have been given a very plausible reason by the family for needing to know the whereabouts of the person (for example the illness of a close relative) and the third party may unwittingly think they are helping the victim. These requests are often made by telephone and rely on the person making the request persuading a practitioner that they are authorised to receive information. Do not provide this information. If you are in any doubt about such a request, consult an experienced colleague or manager.

Those fleeing a forced marriage or those running away to avoid a forced marriage that has not yet taken place may be reported as missing by their families. The forced marriage aspect of the case may not be apparent when the report is made.

If police locate a young person under the age of 18, social services or the police should interview the young person (before returning them home) to establish whether it is in their best interests to return home.

If the family locate the person, try to interview the person on their own to establish why they left home, the circumstances of their return and what they want to do.

If someone is at risk of being forced into marriage or of other types of abuse, it may not be in their best interests if police or social services disclose information to their family, friends or members of the community. Such disclosure could put them in great danger.

A local authority may provide accommodation for young people between the ages of 16 and 21 if they consider that to do so would safeguard or promote the young person's welfare (section 20(5) Children Act 1989).

Those fleeing a forced marriage, or the threat of one, may need to be relocated with a different local authority, as they may not wish to live in the same area as their family.

A child or young person fleeing a forced marriage, or the threat of one, may not wish to be fostered with a family from their own background or community.

A child or young person might wish to be fostered outside the immediate geographical area.

5.14 Repatriation

Sometimes the Foreign, Commonwealth & Development Office (FCDO) may ask the police or social care for assistance when a British national is being repatriated to the UK from overseas.

In these cases, the victim may be extremely traumatised and frightened. They may have been held against their will for many months or years. They may have suffered emotional and physical abuse. If a marriage has already taken place, a girl or woman may have been raped. Sometimes they will have risked their life to escape and their family may go to considerable lengths to find them. This makes all victims, particularly women, extremely vulnerable when they return to the UK.

When a British national seeks assistance at a British Embassy or High Commission, the FCDO can try to help them return to the UK, or their country of habitual residence, as soon as possible if appropriate. Unfortunately, due to the urgency of the situation, the FCDO may not be able to give the police or social care much notice of the person's arrival.

The FMU can facilitate a British national's return to the UK by providing emergency travel documents, helping to arrange flights and, where possible, by arranging temporary accommodation whilst the victim is overseas. Any help provided must be in accordance with local laws, so there may be occasions when some forms of assistance are not available. The FCDO or social care may ask the police to meet the person on arrival, in case family members try to abduct them at the airport.

There are support agencies that can also offer specialised support for repatriated victims of forced marriage. They provide advice or assistance in collecting women and men from the airport, and further assistance with their resettlement in the UK. Please refer to the support organisations listed in chapter 17 for further details.

Where necessary, the FMU can help secure funding for repatriation costs for forced marriage victims. Where possible, the FMU will seek to ensure that, as part of a Forced Marriage Protection Order (FMPO), the costs of return fall on the perpetrators. Where this is not safe, or appropriate, the FMU will work with family, friends, or other public bodies such as social care to meet the costs. The cost of return should never delay a victim seeking, or receiving, assistance to do so.

5.15 Record keeping

Keeping records of forced marriage is important. The records may be used in court proceedings or to assist a person (particularly women who say that they have experienced domestic abuse) in their immigration case. Records should provide a detailed account of what was discussed with the person. Even if forced marriage is not disclosed, a record of your concerns may be useful in the future.

All records belonging to people facing forced marriage should be kept secure to prevent unauthorised access by those within the broader community who may potentially pass on confidential information to a victim's family. Records should only be available to those directly dealing with the case - they also need to:

Some people who have fled a forced marriage have been traced through their medical or benefit records. When someone moves to a different area, it is important to have systems in place to prevent their medical records being traced to another GP practice or benefit office.

5.16 Police protection

Social care services may approach the police and ask for their assistance in undertaking a joint investigation. The way in which this is to be handled in England should be covered in the procedures prepared by the local safeguarding partners (the local authority, clinical commissioning group and the chief officer of the police) and in accordance with Working Together to Safeguard Children, and in Wales by Working Together Volume 5.[footnote 32] A joint approach may be particularly useful where it is thought that a child or young person is at immediate risk of forced marriage.

Where there is reasonable cause to believe that a child or young person, under the age of 18 years, is at risk of significant harm, a police officer may (with or without the co-operation of social care services) remove them from the parent and place them under police protection (s.46 Children Act 1989) for up to 72 hours. The police must inform children's social care and ask them to assist in finding safe and secure accommodation for the child or young person. Children's social care should commence child protection enquiries under s.47 of the Children Act 1989. After 72 hours, the police must release the child or young person. At this point, however, children's social care may apply for an EPO if the child or young person is still considered to be at risk of significant harm. The police have the power to make their own application for an EPO, but as a matter of practice this is done by children's social care.

Social care services should assist the police, if requested to do so, by arranging a placement for the child or young person in a place of safety, taking into account risk management and safety planning - whether this is in local authority accommodation provided by children's social care, on their behalf, or in a refuge.

Police officers have the power, under s.17(1)(e) Police and Criminal Evidence Act 1984 (PACE), to enter and search any premises in order to protect life or limb.

Police officers can also prevent a child's or young person's removal from a hospital or other safe place in which the child or young person is accommodated.

The parents may ask for contact with the child or young person, but this does not have to be granted if it is not in the child's best interests, i.e. if it would place the child or young person in danger.

The local Police Child Protection Officer must be informed of any child under police protection. A child or young person may wish to see a police officer of the same gender. They may, or may not, want to see a police officer from their own community - try to give the child or young person the choice.

You may be placed under pressure from relatives, those with influence within the community, councillors or MPs to say where the child or young person has gone. Do not divulge this information.

The police do not have parental responsibility with respect to the child or young person while they are under police protection but they can do what is reasonable in the circumstances for the purposes of safeguarding or promoting the child's welfare. The police cannot make any decisions for them beyond the 72 hours of the order.

6. Healthcare Professionals: Guidelines

6.1: Background

The National Health Service (NHS) aims to create an "open and safe environment" where forced marriage can be discussed and where people know that they will be listened to, their concerns taken seriously, and healthcare help offered. The NHS has a wider social duty to promote equality through its services and to consider carefully those groups or sections of society where improvements in health are most needed to address inequalities.

Helping people who may be threatened by forced marriage should be part of ensuring all services and departments within the health service are addressing inequalities and also that they are person-centred and age appropriate services. The NHS Long Term Plan sets out moving towards service models for young people that offer person-centric and age appropriate care for mental and physical health needs, selectively moving to a '0-25 years' service to improve outcomes and continuity of care. 'A Healthier Wales' also sets out a long-term future vision of a 'whole system approach to health and social care', which is focused on health and wellbeing, and on preventing illness.

All health services - including Primary Care services, Practice Nurses, Dentists, Health Visitors and School Nurses, NHS England and NHS Improvement, NHS Wales, Clinical Commissioning Groups, Integrated Care Systems, NHS Trusts, NHS Health Boards, NHS Foundation Trusts, Public Health Wales, General Practice, specialised commissioning services and community health services - can help create an "open" and supportive environment by:

All staff working in healthcare services should be able to recognise potential indicators of child abuse, including forced marriage. The Inter-collegiate document 'Safeguarding Children and Young People: Roles and Competencies for healthcare staff' sets out the knowledge and skills needed based on their role.

A victim might wrongly assume that healthcare professionals cannot help them, and as such not disclose to a health professional that they are a victim of forced marriage. However, if a healthcare professional is aware of the issues around forced marriage and the ways in which victims can be supported, they are in an ideal position to provide early and effective intervention. They can offer practical help by providing information about rights and choices. They can also assist the victim by being alert to safeguarding concerns and referring them on appropriately, for example to the police and social care services if they are under 18 (or aged 18 and under in Wales), or over 18 with their consent, as well as signposting them to local and national non-Governmental Organisations (NGOs) or charities that may be able to assist.

There will be occasions when victims (especially women) do not mention either forced marriage or domestic abuse, but present with signs or symptoms, which, if recognised, may indicate to the healthcare professional that they have been subjected to 'honour'-based abuse and are within a forced marriage or at risk of entering into one. They may have unexplained injuries, be depressed, anxious or self-harming, or be involved in substance misuse. Some individuals attend for a completely different reason and mention in passing that there are "family problems"; with careful questioning they may disclose more.

Professional curiosity is needed when working with families who are displaying disguised compliance. Disguised compliance involves parents or carers giving the appearance of co-operating with agencies to avoid raising suspicions and allay concerns. In these cases, the needs and accounts of the vulnerable child or adult should always take precedence.

For more information:
Professional curiosity & challenge - resources for practitioners : Manchester Safeguarding Boards (manchestersafeguardingpartnership.co.uk) NHSE GUIDANCE - COVID-19 (safelives.org.uk)
There are many different ways individuals may come to the attention of healthcare professionals. For example, they may present to:

An interview with a healthcare professional may be the only opportunity some victims have to tell anyone what is happening to them. To prevent this type of domestic abuse it is imperative that all healthcare professionals are prepared to use these limited opportunities to openly discuss the issues around forced marriage. This guidance is intended to assist all healthcare professionals to recognise the warning signs of forced marriage, understand the dangers faced and respond to their needs safely and effectively.

Many healthcare professionals have to make difficult decisions when presented with issues around forced marriage and this document aims to address these together with some of the practical ways in which they can support anyone facing forced marriage.

6.2 How healthcare professionals can help

As with all types of domestic abuse, those under threat of forced marriage, or already in a forced marriage, may present to healthcare professionals in many different ways. Therefore, healthcare professionals should take a proactive role to establish whether forced marriage is an issue. Healthcare professionals should use professional curiosity (making sure to do so in a private setting) to ask appropriate questions to establish whether patients are at risk of or experiencing harm, including forced marriage. Most people will not be offended by such questions if they know the questions are routine.

Questioning could include:

Depending on the response a healthcare professional receives, they may go on to ask:

These routine questions can be tailored to any department within the health service to reflect the types of issues with which women may present. For example, in a child and adolescent mental health service, or any department where children or young people attend, the questions may focus on the family relationship - such as:

Again, depending on the answer, the healthcare professional may go on to ask more in-depth questions - for example around gender roles within the family or questions around the marriages of older siblings and the circumstances of those marriages.

Some healthcare professionals have more opportunities than others depending on their area of work, or their ability to create opportunities to see someone alone, where they may feel more able to talk. These include health visitors, midwives, GPs, practice nurses, school nurses, mental health staff and professionals in family planning clinics, genito-urinary clinics and sexual assault referral centres, amongst others. If there are concerns that forced marriage may be an issue, the healthcare professional might ask questions about family life and whether the person faces restrictions at home.

Some people trapped within a forced marriage have severe restrictions placed on them by their own family, spouse or extended family. Some find themselves under "house arrest", and face severe financial restrictions. Others may not be allowed out of the house unaccompanied - and may frequently be accompanied to appointments. Healthcare professionals should try to see the individual alone whenever possible, for example by explaining that it is standard practice to do this so that when they are spoken to they are not under duress.

There are many questions a healthcare professional could ask to establish whether someone is trapped in a forced marriage. These include:

Some healthcare professionals may be concerned that someone is under threat of a forced marriage because they are exhibiting some of the behaviours shown in the lists of potential warning signs or indicators in chapter 2.11. They may be isolated, depressed or withdrawn; misusing alcohol and drugs (prescribed or non-prescribed); or have unexplained injuries.

In these cases, sensitive questioning may encourage the person to disclose forced marriage. Even if they do not disclose anything the first time you raise forced marriage, it will show them that you understand the issues and it may give them confidence to disclose at a later date.

If there are still concerns over forced marriage but the person has not disclosed anything, do let them know that if their circumstances change and they believe they or anyone they know will be at risk of forced marriage, there are organisations that can assist them, including the FMU, details for which are available online. Do not provide them with a leaflet as this may put them at risk, particularly if they are accompanied. Healthcare professionals should always be alert to safeguarding concerns and follow local safeguarding procedures.

Healthcare professionals should remember too that, following the commencement of new legislation on 27 February 2023 (see Chapter 2), it is an offence to do anything intended to cause a child to marry before they turn 18, even if coercion is not used. In cases where no coercion is used, the child might not demonstrate fear of the proposed marriage, yet the marriage would still be a forced one.

Key principles:

6.3 Handling cases involving children and young people

Early identification of risks can help children and young people to receive the crucial support they need to be healthy, safe and happy.

In England, if you have concerns for the safety of an individual under 18 years of age, activate your local child protection procedures and use existing national and local protocols for multi-agency liaison with police and children's social care.[footnote 33]

Refer to the local police child protection unit if there is any suspicion that a crime has been, or may be, committed. Liaise with the police if there are concerns about the safety of the person, their siblings or their children.

In Wales, if information is received that a child is at risk this must be reported, as set out in the Social Services and Well-being (Wales) Act 2014. Information on reporting a concern is set out in the Wales Safeguarding Procedures, which can be found here: Social care Wales (safeguarding.wales). Statutory guidance on handling individual cases of children at risk has also been issued in Wales.[footnote 34]

6.4 Confidentiality

Effective information sharing is important to help keep people safe. Practitioners should follow their existing local safeguarding procedures in line with information sharing and data protection principles.

Decision-making about what to share, and when, should be governed by a clear, collective understanding about the risks to the safety of any individual and their family, and how those risks and the other needs within that family can be addressed. Information-sharing should happen with the express intent of reducing risk to one or more family members.

For children, the below is an extract from the 'Working together to safeguard children' statutory guidance:

Regarding adults, the process should be consent-led. If the victim objects to the disclosure of personal information and they are deemed to be mentally competent to understand the risks to themselves of that decision then their objection should generally be respected. However, if it is believed that withholding information puts a child at risk of significant harm, or another adult at risk of serious harm, then disclosure may be justified in the public interest. You can share confidential information without consent if it is required by law, or directed by a court, or if the benefits to a child or young person that will arise from sharing the information outweigh both the public and the individual's interest in keeping the information confidential. The process must be compliant with GDPR and the Common Law Duty of Confidence. The Information Sharing Protocol and Caldicott Principles must be adhered to and the decision to share must be recorded as being both proportional and relevant in relation to the risks.

Professional judgement should be used to help assess the circumstances and determine appropriate action to take. Safeguarding leads as well as other specialist roles, such as Caldicott Guardians and designated/named professionals, can help advise.

Further information on confidentiality and information sharing can be found from:

6.5 If you suspect someone is being forced into marriage:

7. Supporting Victims With Learning Disabilities

Key principles:

The 'My Marriage, My Choice' project (led by Dr Rachael Clawson at the University of Nottingham, in collaboration with the University of Kent, RESPOND and Ann Craft Trust), has developed a range of resources to help practitioners, people with learning disabilities and family members better understand forced marriage.[footnote 35] These include practice guidance and a toolkit to assist practitioners who are working to support people with learning disabilities to recognise and take appropriate action when there is a risk of forced marriage. Much of this work has informed the guidance set out in this chapter. For further information visit their website at:
My Marriage My Choice - The University of Nottingham
7.1 Specific issues facing people with learning disabilities

Research and evidence tells us that children and adults with learning disabilities are subjected to more abuse and less likely to be protected by safeguarding systems than their peers who do not have learning disabilities.[footnote 36] It might also be wrongly assumed that the impact of abuse is physically or emotionally less painful because the victim has a learning disability.

Human rights law applies equally to people with and without disabilities. People with learning disabilities are often seen or treated by others in ways that contravene their rights, for example in not being given choices or having their views listened to. The impact of this can be that they do not have the opportunity to develop fulfilling relationships, do not participate fully in decisions affecting their lives and have their participation in many activities limited.

Individuals with learning disabilities are subjected to more abuse than their peers who do not have a disability for a range of reasons, including:

Considering that the age of victims, the transition period between child and adult services for young people with learning disabilities can be a time of particular vulnerability, this can lead to professionals sometimes being unable to recognise that abuse is taking place for a range of reasons including:

A person's capacity to consent can also change. For example, with the right support and specialised education, a person with a learning disability may move from a position of lacking capacity to consent to marriage, to having capacity. However, some children and adults with learning disabilities are given no choice and/or do not have the capacity to give informed consent to marriage and all it entails. This may include engaging in a sexual relationship, having children and deciding where to live.

Perpetrators who force their children or other family members with learning disabilities into marriage may do so for several reasons. Some of the key motives that have been identified are: [footnote 37]

It is important to note that a person without a learning disability may also be a victim. They may not know that their spouse has a learning disability and/or care needs, and may themselves be subjected to abuse from extended family if they do not fulfil their role as a carer. They may also face difficulties if they choose to leave the marriage.

Research also shows that men with learning disabilities are just as likely to be forced to marry as women, and people with learning disabilities tend to be older than the general population when these marriages take place[footnote 38].

7.3 The Mental Capacity Act 2005 and the capacity to consent to marriage

The Mental Capacity Act 2005 applies to all people aged 16 and over[footnote 39]. The Act provides a statutory definition of what it is to lack mental capacity and a framework both for how decisions may be made for those who lack capacity, and for those who have capacity to make preparations for a time when they may lack capacity in the future. It sets out who can take decisions, in which situations, and how they should go about this. The Act starts from the basis that, all are assumed to have the capacity to make decisions.

A person lacks mental capacity if they are unable to make a decision due to an impairment or disturbance of the mind or brain. Being unable to make a decision means being unable to:

Where someone is found to lack capacity to make a particular decision, the Act sets out circumstances in which other people are permitted to make those decisions on behalf of that person. Any such decision must be made in the best interests of the person who lacks capacity. For example, family and professionals might decide that it is in a person's best interest to live in a certain place, even though the person themselves lacks the capacity to consent to such a decision.

However, there are certain decisions which cannot be made on behalf of another person and these include the decision to marry or to have sexual relations. There is therefore no legal basis on which someone can agree to marriage, civil partnership or sexual relations on behalf of someone who lacks the capacity to make these decisions themselves. However, families sometimes believe they have the "right" to make decisions regarding any marriage of their relative, particularly if they are trying to secure long term care. Research has found that although many families know what forced marriage is, they would not consider 'arranging' a marriage for their son or daughter a forced marriage if they cannot consent (My Marriage, My Choice (2018) Summary of Findings).

(You are advised to refer to the Mental Capacity Act Code of Practice for more detailed guidance [ Mental Capacity Act Code of Practice - GOV.UK (www.gov.uk)]; this section provides an outline only.)

The five statutory principles which underpin the Mental Capacity Act are:

1. A person must be assumed to have capacity unless it is established that they lack capacity.

2. A person is not to be treated as being unable to make a decision unless all practicable steps to help them to do so have been taken without success.

3. A person is not to be treated as being unable to make a decision merely because they make an unwise decision.

4. An act done or decision made under this Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests.

5. Before the act is carried out, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.

Not all of the principles are relevant to a decision to marry. "In English law, the court and/or any individual (including a parent) is unable to give consent to a marriage on behalf of an adult who lacks the capacity to give his/her own consent" (barrister, family law). Principles 4 and 5 therefore cannot apply to decisions about marriage.

What does "lack capacity" mean?

The Mental Capacity Act Code of Practice explains that the term "a person who lacks capacity" mean a person who lacks capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken. This reflects the fact that a person may have capacity to make some decisions but not others, and that mental capacity can fluctuate, decline or improve; a person who lacks capacity to make a decision for themselves at a certain point in time may be able to make that decision at a later date, because they have regained mental capacity on the matter at hand, and vice versa.

Mental capacity can fluctuate or change due to the nature of a specific illness or condition which may be temporary, may improve or decline. Similarly, while some people may always lack capacity to make certain decisions, for example because they have a condition or severe learning disability that has affected them from birth, others may learn new skills that enable them to gain capacity and make decisions for themselves.

Under the Mental Capacity Act, a person should be given all practicable support (such as using simple language or choosing a time of day that works for them) to enable them to make a decision, including the decision to marry, and, importantly in this context, a decision that they do not want to get married. It is important to recognise a decision made as a result of receiving appropriate support and respect the person's capacity to make it.

It should be noted, however, that people with learning disabilities who have capacity may still be at risk. People with learning disabilities who have capacity should still be dealt with under 'learning disability' guidelines, as not doing so could leave them vulnerable. It is therefore important for safeguarding reasons, not to assume a person lacks capacity just because they have a learning disability. Careful assessment of their circumstances will be needed in order to both facilitate their right to choose and to protect them against forced marriage.

It is not just those people with learning disabilities whose capacity can be affected. There are other reasons including brain injury, dementia, Alzheimer's and mental ill-health that can affect a person's capacity which should be taken into consideration.

If a person does not consent or lacks capacity to consent to marriage, that marriage must be viewed as a forced marriage no matter the reason for the marriage taking place. Capacity to consent can be assessed but is time and decision-specific. Support should be given to enable the person to make the decision if this is possible.

Mandeep's story

"Last night I heard my parents talking about our trip to India this summer and their plan for my brother Mandeep to get married while we are there. My mum said they're getting too old to look after him so thought it would be best for him to have a wife to do so. Mandeep has a learning disability and needs support from mum and dad for even the most basic tasks. I really don't think he understands anything about being in a marriage"

Mandeep's sister contacted the Forced Marriage Unit and told them her concerns about her brother's situation and his ability to understand what was about to happen to him. The FMU made a referral to the local adult social care team explaining the situation and requesting that they carry out a Mental Capacity Assessment for Mandeep, ensuring the source of information remained anonymous. Mandeep was already known to the learning disability team, who were already providing him with support but they were unaware of the upcoming marriage. Through the assessment, they found that he lacked the capacity to consent to sex and marriage. Through the advice of the Forced Marriage Unit, they were able to get a safeguarding plan in place, including obtaining a Forced Marriage Protection Order. They then worked with the family to explain the risk of marriage to Mandeep and explore other options for his long-term needs.

8. Schools, Colleges and Universities: Guidelines

Although this chapter is specifically aimed at teachers, lecturers and other members of staff within schools, colleges and universities, much of the guidance and information below will apply to staff working in other educational establishments.

8.1 Background

Young people, especially girls, who are forced to marry, or those who fear they may be forced to marry, are frequently withdrawn from education, restricting their educational and personal development. They may feel unable to go against the wishes of their parents and consequently may suffer emotionally, often leading to depression and self-harm. These factors can contribute to impaired social development, limited career and educational opportunities, financial dependence and lifestyle restrictions.

Staff may become aware of a student because they appear anxious, depressed and emotionally withdrawn with low self-esteem. They may show signs of mental health disorders and display behaviours such as self-harming, self-cutting or anorexia. Sometimes a student may come to the attention of the police having been discovered shoplifting or taking drugs or alcohol. Often students' symptoms can be exacerbated in the periods leading up to holiday seasons. Staff may wish to be particularly vigilant during these times.

Students may present with a sudden decline in their performance, aspirations or motivation, with some female students feeling that studying is pointless if they are going to be forced to marry and therefore be unable to continue with their education. However, high achievers can also be at risk of forced marriage and there may have been no previous problems at school or concerns raised about the family.

There may be occasions too when a student comes to school or college but then absents themselves from lessons. Often young people at risk of forced marriage are living in virtual imprisonment. They may be subject to excessive restrictions and control at home. Some students may not be allowed to attend any extra-curricular or after school activities. Girls and young women in particular may be accompanied to and from school/college, even during lunch breaks. Therefore, school time is their only "free" time to do ordinary adolescent activities that other students do at weekends with their friends.

Some students may stop attending school or college altogether and visits to the home by welfare officers or other members of staff may result in the professional being told that the student is out of the country. In some cases, the student may have been locked in a room of the house and not allowed to communicate with anyone outside.

Other students may show a decline in punctuality, especially if they are past compulsory education age, which may be the result of having to "negotiate" their way out of the house. Some students, particularly girls, are given minimal time to get to school to ensure that they do not have time to meet a boyfriend or talk to friends. There are occasions when older siblings (usually brothers) and cousins keep a close eye on girls to make sure that they do not meet anyone or talk to friends.

Some students may come to the notice of teaching staff because their homework is incomplete or appears rushed. This may be the result of being actively discouraged from doing it by family members. These students may do their homework late at night and may frequently show up at school feeling lethargic, unable to concentrate and have a general appearance of tiredness.

Staff may become aware of conflict between the student and their parents, particularly about whether the student will be allowed to continue their education. Sometimes there may be family disputes over whether the student can make applications to colleges or universities, and about the distance of the college or university from the family home.

Another warning sign might be a family history of older siblings leaving education early and marrying early. Their parents may feel it is their duty to ensure that children are married soon after puberty in order to protect them from sex outside marriage. In these cases, there may be a history of considerable absence that has been authorised by the student's parents. These absences may be for sickness, or extended family holidays overseas, often interrupting the school term.

Students who fear they may be forced to marry often come to the attention of, or turn to, a teacher, lecturer or other member of staff before seeking help from the police or social services. Sometimes the student's friends report it to staff. Teachers, lecturers and other members of staff are in an ideal position to identify and respond to a victim's needs at an early stage. They can offer practical help such as referring the student to social services or to local or national support groups, but can also help by providing them with information about their rights and choices. The statutory guidance, 'Keeping Children Safe in Education' in England and Keeping Learners Safe in Wales, sets out clearly what school and college staff need to know about different forms of abuse and what they need to look out for to identify a child in need of help.

Educational establishments should aim to create an "open environment" where students feel comfortable and safe to discuss the problems they are facing - an environment where forced marriage is discussed openly within the curriculum, and support and counselling are provided routinely. Students need to know that they will be listened to and their concerns taken seriously. Staff in special schools need to be aware of potential warning signs for pupils.

Education professionals should remember too that, following the commencement of new legislation on 27 February 2023 (see Chapter 2), it is an offence to do anything intended to cause a child to marry before they turn 18, even if coercion is not used. In cases where no coercion is used, the child might not demonstrate fear of the proposed marriage, yet the marriage would still be a forced one, and staff should take those cases as seriously as any other.

How education professionals can help:

If you suspect a student is being forced into marriage:

Do not:

Treat such allegations merely as a domestic issue and send the student back to the family home.

Ignore what the student has told you or dismiss out of hand the need for immediate protection.

Decide that it is not your responsibility to follow up the allegation.

Approach the student's family or those with influence within the community, without the express consent of the student, as this will alert them to your concerns and may place the student in danger.

Contact the family in advance of any enquiries by the police, the FMU, or adult or children's social care, either by telephone or letter.

Share information outside what is permitted by information sharing protocols without the express consent of the student.

Attempt to be a mediator or encourage mediation, reconciliation, arbitration or family counselling.

8.2 If a student stops attending school

Section 436A of the Education Act 1996 places a duty on local authorities in Wales to make arrangements to identify children in their area who are of compulsory school age and not receiving a suitable education.[footnote 45] This duty does not apply in relation to children and young people who are registered at a school who are not attending regularly. In such cases a child or young person should be subject to intervention through existing attendance strategies and education welfare procedures.

In 2010, the Welsh Government first published "Statutory guidance to help prevent children and young people from missing education. A practical toolkit to help identify children and young people missing education". This guidance was amended in 2017[footnote 46]. It provides advice and makes recommendations as to how to meet and embed standards and sets out responsibilities for local authorities in relation to their duty to identify children and young people in their area not registered at a school and not receiving a suitable education, and reduce the risk of children and young people going missing from the education system, by identifying and supporting vulnerable groups of children and young people and ensuring effective interventions at an early stage.

There may be occasions when a student does not return to education after a holiday or they may stop attending school during term time. In these situations, staff may have a suspicion that forced marriage is an issue. If a teacher, lecturer or other member of staff suspects that a student has been removed from, or prevented from attending, education as a result of forced marriage, a referral should be made to the local authority adult or children's social care services and to the police.

There may be occasions when an Education Welfare Officer (EWO) or teacher visits the family to find out why the student is not attending school or college. The family may tell the EWO or teacher that the student is being educated overseas. Sometimes, the family suggest that the EWO or teacher speaks to the student on the telephone. If this occurs, consider how far the information gained on a telephone call can be relied upon. There have been occasions when students have not been able to talk freely over the telephone or a different individual has spoken to the EWO or teacher. If the student is a British national, an alternative could be to suggest that the student presents at the nearest British Embassy or High Commission to speak with a consular officer. In most cases, consular staff can verify the student's identity and facilitate a private conversation with them. However, consular visits require planning and preparation so please consult with the FMU before suggesting a student consular visit to an Embassy or High Commission. For further information, refer to the statutory guidance for local authorities in England to identify children not receiving a suitable education.[footnote 47]

8.3 Making Referrals

If the student is an adult with disabilities, referrals should be made in accordance with the local Multi-agency Adult Protection Committee procedures and protocols to protect vulnerable adults from abuse.

The student may not wish to be referred to a social worker, police officer or a guidance/pastoral/head teacher from his or her own community. Consult other professionals, particularly an experienced manager/colleague, or the local police child protection or domestic abuse unit. Advice can be sought without revealing the student's identity.

Speaking to the student's parents about the action you are taking may place the student at risk of harm. Therefore, do not approach the family as they may deny that the student is being forced to marry, move the student, or expedite any travel arrangements and bring forward the forced marriage.

Report the details of the case, with a full family history, to the Forced Marriage Unit. Encourage the student to get in touch with the Forced Marriage Unit. The Unit provides advice and support to individuals who fear that they may be forced into marriage.

Mariam's Story

"Just after I turned sixteen, my parents decided it was time for me to get married. They asked my school for time off, saying we were travelling for my grandmother's funeral. Nobody would tell me what was going on, but I overheard my mum talking about it on the phone. One of the teachers was asking me about the time off and saw that I was getting upset."

Mariam's teacher spoke to the designated safeguarding lead about the situation, and she asked Mariam some more questions. She explained that she would not tell Mariam's parents what they had talked about, but would have to contact social services. A social worker came to see Mariam at school. Based on what she had said, the local authority applied for a Forced Marriage Protection Order so she could live safely at home and carry on studying. Staff at the school spoke to her regularly about how things were going and whether she needed any extra support. She passed her exams and went on to college.

9. Police Officers: Guidelines

9.1 Background

Police have a number of key responsibilities in relation to forced marriage. These include keeping victims safe, investigating crimes associated with forcing someone to marry and supporting any witnesses. Police work in partnership with the Crown Prosecution Service (CPS) to prosecute cases.

Forced marriage is a criminal offence (see definition in Chapter I of the statutory guidance). This includes:

Although this chapter focuses mainly on women and girls, men and boys are also forced into marriage with approximately 20% of calls to the FMU concerning male victims. Male victims should be given the same assistance and respect when they seek help, particularly as they may find it more difficult to admit to being forced into marriage and therefore, may be less likely to seek the help they need. This may be a particular concern for men who are forced into marriage in an attempt to conceal or change their sexuality.

9.2 How police officers can help

To gain the trust of a victim or potential victim, the police must have a good understanding of the issues surrounding forced marriage and the steps that they can take in order to protect a victim. Risks to others connected to the victim, such as siblings or partners, must also be considered. They need to be aware that people who have been forced into a marriage, or those under threat of one, may face significant harm if their families become aware that they have sought assistance from an agency, whether that be the police, social care or a voluntary or community-based organisation. The person's safety must come first. In many cases, it may not be in their best interests to remain with the family or even in the immediate vicinity. If possible, cases of forced marriage, actual or suspected, should only be handled by an officer who has been nominated by his or her police force as being qualified, both by relevant experience and specialist training, to deal with such cases. Not all police forces have a specialist officer or department to deal with these issues, but the most appropriate officer should deal with the case. Where possible, you should gain the victim's views about uniformed officers attending, unless urgent to save life/limb etc. Police should also consider the advice of the National Crime Agency's Protected Persons Service where the risk is particularly high or enduring.

There may be occasions when the victim will not wish to engage in any prosecution case or will minimise their concerns/role through fear of speaking out and the love they feel for their family. Police do, however, still have a duty to safeguard such victims and, in some cases, they should still prosecute and bring offenders to justice. This will be a difficult situation to manage if the victim has disengaged and it may be difficult for police to monitor their safety. All high-risk cases should be considered for a Multi-Agency Risk Assessment Conference (MARAC) and a FMPO.

9.3 If someone fears they are being forced into marriage

There may be occasions when the police are required to establish whether someone is safe while they are still in the UK. In these situations, it is important that police interview them confidentially away from their family home, in a neutral place, where they cannot be influenced or pressured by family members. It is sometimes appropriate to establish secure pathways of communications, with passwords, so that you know that the victim is safe, if they choose to remain the within the family home.

If the person is travelling overseas, the police should obtain all names and addresses (or another identifiable geographic location) of extended family members where they may be staying. It is good practice in all cases to obtain details of a family tree.

9.4 If a third party reports that someone has been taken overseas for the purpose of a forced marriage

Sometimes a person may be taken overseas on the pretext of a family holiday or the wedding, illness or funeral of another family member. On arrival, their mobile phone, documents and passports may be taken away from them. Some victims have also reported their parents drugging them. In these cases, it may be a "third party" in the form of a concerned friend, relative, partner or agency that reports them missing. These cases may initially be reported to the FMU, social care, police, education or a voluntary group.

As with all cases of forced marriage, confidentiality and discretion are of vital importance. It is not advisable to contact an overseas police service or organisation to make enquiries. Risks may arise if police or organisations overseas are contacted directly. If, through overseas police actions, the family becomes aware that enquiries are being made, they may move the victim to another location, seek to expedite the forced marriage and/or harm the victim.

Response:

Inform the third party that if the person being held overseas wishes to return to the UK (if they are a British national), the FCDO may be able to help them, including by helping to arrange flights or replacing missing travel documents. In some locations, the FCDO may have trusted partners to help victims find safe emergency accommodation if necessary. It is important to note, however, that the assistance provided will of necessity need to be tailored to the circumstances of each case. Local law may prevent some forms of assistance. For example, in some countries parental consent may be required before a minor, or an unaccompanied female, is permitted to depart through immigration. In such circumstances a FMPO can be a powerful tool to try to obtain any necessary permissions (see chapter 16 for further details).

Where necessary, the FMU can help secure funding for the repatriation costs for forced marriage victims. As far as possible, the FMU will work with the relevant authority in the UK which is applying for a FMPO, to seek to ensure that the costs of return fall on the perpetrators. Where this is not deemed by the relevant authority to be safe, or appropriate, the FMU will identify other potential sources of support. The cost of return should not delay a victim seeking, or receiving, assistance to do so.

Best practice:

Do not:

Communicate directly with the person's family, friends or those with influence within the community, as this may alert perpetrators to the enquiries being conducted and may place the victim in further danger.

Make direct contact with the British Embassy, High Commission or overseas police without first liaising with the FMU and/or the FCDO Law Enforcement Adviser.

Assume that the individual can speak freely on the phone; also consider whether someone else may be impersonating the victim.

Make direct contact with overseas law enforcement agencies without reference to a specialist supervisor experienced in managing such cases and the FMU.

Attempt to mediate between parties or between an individual and their family. Mediation can be extremely dangerous and can put the individual in danger.

9.5 What to do when someone has already been forced into marriage

Many cases of forced marriage come to light when a person is reported missing or there are allegations of domestic and other forms of abuse, but some cases are brought to the attention of the police or social care when a victim is forced to act as a sponsor for their spouse's immigration to the UK. These are referred to as 'reluctant sponsor' cases. Reluctant sponsors are frequently reluctant to tell UK Visas and Immigration that it was a forced marriage because of threats and fear of reprisals from the family. A person whose application to enter the UK as a spouse is refused has a right to know the reasons why - and the right to appeal against the decision. This can place the victim in a difficult position. However, the FMU can give confidential advice in such cases.

Spouses forced into marriage may suffer years of domestic abuse but feel unable to leave due to fear of losing their children, lack of family support, economic pressures and other social factors. The fact that they were forced to marry may only become apparent years after the marriage has taken place.

In all cases, police officers need to discuss the options available to the person and the possible outcomes, or potential consequences, of their chosen course of action. Where cases involve person/s under the age of 18, positive action will need to be taken in line with current legislation and other crimes which may have been committed[footnote 50].

Response:

9.6 What to do when a spouse has come to the UK from overseas

A spouse may come to the UK from overseas and report that they have been forced to marry overseas. In some cases they may not speak English and may not be aware of the support to which they may be entitled. Again, these cases may be reported initially as cases of domestic abuse, missing persons or child protection-related matters.

If the spouse does not have indefinite leave to enter (ILE), indefinite leave to remain (ILR), leave granted under the Destitution Domestic Violence Concession, humanitarian protection, discretionary leave or a right of abode in the UK, then they are likely to have a restriction on receiving public funds. Public funds include income support and housing benefit. This means that it can be difficult to get access to a refuge (although occasionally refuges may be able to offer places). As a result, individuals may have difficulty in finding alternative accommodation and the means by which to live. This may lead individuals to feel they have no option but to remain in the marriage and to be unable to co-operate with police or anyone they see as being in a position of "authority". Having no recourse to public funds, whilst being dependent upon a spousal visa, can sometimes result in non-UK victims not reporting criminality to the police. People in this position can be exploited because of their vulnerability, and suffer an array of criminal offences, including domestic servitude.

Best practice:

Do not:

Use a relative, friend, neighbour, child or those with influence in the community as an interpreter despite any reassurances from this known person. Information at the interview may be imparted to other members of the community and may put the victim at risk of further harm. You should always use an accredited interpreter.

Attempt to give the victim immigration advice. It is a criminal offence for any unqualified person to give this advice.[footnote 51]

9.7 Legal position

Once a person has left the country, the legal options open to police, social services, other agencies or another person to recover a young person and bring them back to the UK are limited. However, it is possible to seek the return of the young person to the jurisdiction of England and Wales by making them a ward of court and/or taking out a FMPO (see chapter 16 for further details).

A spouse who is the victim of a forced marriage can initiate nullity or divorce proceedings to end the marriage. Another protective order available under the Family Law Act 1996 is a non-molestation order. The Protection from Harassment Act 1997 also offers protection by way of a restraining order. Further information on these is set out below.

If the young person is under the age of 18, is present in the UK without their family and states that they were forced into marriage and do not wish to remain with their spouse, social services should consider the young person in the same manner as an unaccompanied asylum-seeking minor, and should accommodate the young person under (in England) s.20 Children Act 1989 or (in Wales) the Social Services and Well-being (Wales) Act 2014.

Local Authority Circular (LAC) 2003, 13 states that when a child has no parent or guardian in this country, the presumption should be that the child would fall within the scope of s.20 and become a child "looked after" by a local authority, unless the needs assessment reveals particular factors which would suggest that the child is not a looked after child. If the young person is under 18 and has children, they should still be regarded as an unaccompanied child.

Anyone who has been granted indefinite leave to enter or remain, refugee leave, humanitarian protection, discretionary leave or who has a right of abode in the UK has the same entitlements to public funds as a British citizen. Funding for legal advice ('legal aid') is not counted as public funds, and individuals may be entitled to legal aid whatever their immigration status. Children's social care may have the power to make discretionary payments. These payments do not count as public funds.

If they are a victim of domestic abuse, the domestic violence provisions under the Immigration Rules may apply. Under these provisions, police can provide evidence of domestic abuse in the form of a report confirming attendance at the applicant's home because of domestic abuse. Police records and statements may be vital evidence in their immigration case. This evidence may be placed before an immigration hearing and a police officer may be called as a witness. Consider contacting the Home Office for funding for those with no recourse to public funds under the Destitution Domestic Violence Concession - this would be only for those making a domestic violence rule application under the spousal visa if the person is destitute. People should always seek legal advice before they do this. Also consider contacting a women's organisation specialising in domestic abuse, immigration and no recourse to public funds.

For further information about applications for wardship, FMPOs and other legal remedies, see the good practice section at chapter 16.

Refer to the documents below:
Honour-Based Violence and Forced Marriage Protocol (NPCC and CPS), 2016. Honour-Based Abuse, Forced Marriage and Female Genital Mutilation: A Policing Strategy for England, Wales and Northern Ireland (NPCC), 2015. Honour-Based Abuse Practice Summary (College of Policing), 2020. Honour-Based Abuse Advice for First Responders (College of Policing), 2021 Authorised Professional Practice on Domestic Abuse - College of Policing, 2015. Guidance on how to apply for a Forced Marriage Protection Order, HM Courts & Tribunal Service, 2017. Working Together to Safeguard Children 2018
Safeguarding children at risk of abuse or neglect - GOV.WALES.

Safeguarding adults at risk of abuse or neglect - GOV.WALES.
Wales Safeguarding Procedures (safeguarding.wales)
10. Crown Prosecution Service (CPS) Information

The CPS is committed to fairly and effectively prosecuting those who are found to harm others in the name of 'honour'.

The role of the CPS is distinct and separate from the police, who investigate a case once a crime is reported. The police will collate the evidence and submit a file to the CPS, which will then decide whether or not to prosecute. Prosecutors are required to review each case in accordance with the two-stage test as set out in the Code for Crown Prosecutors, when deciding whether or not to bring a prosecution.

Prosecutors must first be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge (the evidential stage). If the case does not pass the evidential stage, it must not go ahead, no matter how serious or important it may be.

If the case does pass the evidential stage, prosecutors must then go on to decide if a prosecution is needed in the public interest (the public interest stage). A prosecution will usually take place unless there are public interest factors tending against the prosecution which outweigh those tending in favour.

For further information on the legal protections available in forced marriage cases see chapter 16.

Key principle:

The civil remedy will continue to exist alongside the criminal sanctions, which means a victim could choose to take the civil route (i.e. by taking out a FMPO), the criminal route (reporting it to the police and pursuing a prosecution, or both.

11. Registrars: guidelines

Registrars can play a vital role in preventing forced marriages and civil partnerships from taking place. An individual who has already been forced into marriage or civil partnership has more limited choices, so every step must be taken to prevent the forced marriage or civil partnership from taking place. This chapter is designed for use by registrars and provides information on how to identify and deal with cases of forced marriage and civil partnership.

Registrars should be aware of the "one chance" rule (see Chapter 3 for further details). That is, they may only have one opportunity to speak to a victim or potential victim and may possibly only have one chance to save a life. If the victim is allowed to leave without the appropriate support and advice being offered, that one chance might be wasted.

Civil partnerships in the UK are a form of civil union granted under the Civil Partnership Act 2004, allowing couples irrespective of sex to obtain the same rights and responsibilities as civil marriage. The guidance within this chapter covers all civil preliminaries to marriage and civil partnership, as well as civil marriage registration and any religious marriage registrations where a registrar is required to attend.

11.1 Forced Marriage/Civil Partnership, Human Rights and the Law

The Matrimonial Causes Act 1973, section 12(1)(c) states that a marriage shall be voidable if "either party did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind, or otherwise." Section 50 of the Civil Partnership Act 2004 contains equivalent provision for civil partnerships. The Registrar General considers that registrars can stop a marriage or civil partnership from taking place if it appears that one party to the marriage or civil partnership lacks consent or capacity and that this would be justified on public policy grounds.

Sections 1 and 3 of the Marriage and Civil Partnership (Minimum Age) Act 2022 ('the 2022 Act'), which came into force on 27 February 2023, provide that the minimum age at which someone may enter into a legal marriage or a civil partnership in England and Wales is 18.

The Anti-Social Behaviour Crime & Policing Act 2014, section 121, states that a person commits an offence if they "use violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage and believes that the conduct may cause the other person to enter into the marriage without free and full consent." It also states that forced marriage is capable of being committed if a person lacks capacity, whether or not threats or duress play a part. If the person is found guilty, the maximum penalty is a seven-year prison sentence. The Act also makes it an offence to lure someone overseas for the purpose of forced marriage. Finally, section 121(3A) of the Act, as inserted by section 2 of the 2022 Act, which came into force on 27 February 2023, states that an offence is committed in England and Wales if "a person carries out any conduct for the purpose of causing a child to enter into a marriage before the child's eighteenth birthday (whether or not the conduct amounts to violence, threats, any other form of coercion or deception, and whether or not it is carried out in England and Wales)". Since legal marriages of anyone aged under 18 cannot proceed as a result of section 1 of the 2022 Act, the new subsection (3A) offence in practice applies to non-binding traditional 'marriages' which would not be seen by registrars.

The Family Law Act 1996 section 63A gives family courts the power to make a Forced Marriage Protection Order (FMPO), for the purposes of protecting a person from being forced into a marriage or protecting a person who has been forced into a marriage. It is a criminal offence if a person, without a reasonable excuse, does anything that they are prohibited from doing by a FMPO (section 63CA Family Law Act 1996). The maximum penalty is a five-year prison sentence.

Forced civil partnership is not a criminal offence in England and Wales, and nor do FMPOs apply to civil partnerships. But this in no way stops registrars taking the appropriate action under the 2004 Act, as above, and the references to civil partnerships in the rest of this chapter relate to those responsibilities.

11.2 Giving notice to marry or form a civil partnership

Both parties have to give notice in person, to the Superintendent Registrar of the relevant district (for marriage) or to the relevant registration authority (for civil partnership) in the district where either party resides.

At this point registrars can make enquiries to ascertain whether the marriage or civil partnership may be forced. It is recommended that both of the parties intending to marry or form a civil partnership should be interviewed in private, independently of each other, without members of their families or communities present. This gives registration officers the opportunity to identify if an individual is under duress to marry or form the civil partnership, i.e. is not entering into the marriage or civil partnership of their own free will. Where possible, registrars should arrange for an independent interpreter, particularly if they have any concerns.

11.3 Capacity Concerns

The law states that if a person lacks the capacity to consent to marriage that marriage is classed as forced. It is also grounds for a marriage to be voidable. If through standard questioning a registration officer becomes concerned with either party's capacity to consent to marriage, the matter should be escalated to social services.

It is important to note that people who lack capacity may not demonstrate any signs of duress or distress. They may say that they want to marry or form the civil partnership and appear happy, but may not have the capacity to consent.

Registration officers will need to act with sensitivity and determine, through the use of open questioning, if the individual understands:

If it is deemed that the individual does not have capacity to consent to a marriage or civil partnership, a caveat can be placed to ensure that the marriage or civil partnership does not proceed.

The Forced Marriage Unit can provide support to an individual if they disclose that they are being forced to marry or form a civil partnership. The police can help if an individual is in immediate fear for their safety. The General Register Office Casework Team can also offer further advice and guidance to registration officers. Keep in mind that either party, or both, can be victims. In some cases where an individual has a learning disability, a marriage or civil partnership could have been arranged in order for caring needs to be met.

11.4 The Wedding Ceremony

The law requires the consent of both parties to marriage or civil partnership, and a marriage or civil partnership must be stopped or deferred if there are concerns that one or both of the parties are not entering into the marriage of their free will or if there are any concerns that they do not have the capacity to consent. Registrars should refer to their own guidance on deferring or stopping ceremonies.

If a Superintendent Registrar considers that either party is acting under duress it is their duty to defer or stop the proceedings and discuss their concerns, in private, with the individual, or, if there are capacity concerns, make a referral to social services.

If the individual is worried for their safety, they should not be left alone with family or community members and Registrars should try to ensure that they do not leave the premises alone or with their family. Instead, the police/social services should be called.

There is no requirement for a ceremony in the case of a civil partnership, therefore it would be best practice to still follow the above guidance before the civil partnership is formed. This would include checking all the information is correct from the time the couple gave notice and having a conversation with them before the civil partnership declaration is signed.

Signs to look out for:

Many of the signs to look out for are the same ones as the signs registration officers may take into account when reporting a sham marriage or civil partnership. A sham marriage or civil partnership is one where the relationship is not genuine but one party hopes to gain an immigration advantage from it. There is no subsisting relationship or dependency. It is also possible that one party is forced or coerced into the sham marriage or civil partnership against their will, although one or both might also be consenting. Here are some additional considerations for forced marriages:

Best practice:

Do not:

Speak to the individual's family or community if you have concerns - this may put the individual at significant risk of harm.

Rely on family or community members to act as an interpreter for you.

Share information with anyone, unless you have the individual's consent or a legal gateway for sharing that information (see 11.5 below).

Attempt to mediate between parties or between an individual and their family. Mediation can be extremely dangerous and can put the individual in grave danger.

Assume they understand the implications of what they are doing.

Assume consent just because they are agreeing to this course of action or seem pleased about it, as they may not understand what marriage or civil partnership actually is, or may have been coached by a third party.

11.5 Confidentiality

Ensuring confidentiality is an extremely important issue for anyone facing a forced marriage/civil partnership. During an interview or marriage ceremony a registrar may suspect that an individual is in immediate danger or lacks the mental capacity to consent to the marriage or civil partnership. It is the registrar's duty to ensure that they are satisfied that the marriage or civil partnership can proceed. In these instances, concerns should be raised with the FMU, police or the local authority safeguarding team.

Where registrars disclose information, they will need to ensure that it is through an appropriate legal gateway and that only relevant information is shared. Each case will need to be judged on its individual circumstances. Registrars will also need to consider that in some cases of forced marriage or civil partnership, disclosure could lead to the individual being at an even greater risk of significant harm.

The FMU can help you if you are concerned about issues of confidentiality in cases of forced marriage or civil partnership. The GRO Casework Team can also offer advice and guidance.

'My Marriage My Choice' have produced a range of resources which are helpful in terms of better understanding forced marriage of people with learning disabilities, and issues of consent. They can be found here:
My Marriage My Choice - The University of Nottingham
The FMU also provide a free online course on awareness of forced marriage, which can be found here:
Forced Marriage Awareness - Free Course - Virtual College (virtual-college.co.uk)
12. Children's Social Care: Guidelines

Please note that arrangements for meeting the needs of children with needs for care and support in Wales are set out in the Social Services and Well-being (Wales) Act 2014, and in regulations and guidance made under it (see below). In particular, the Act strengthens safeguarding arrangements for children by placing on relevant partners a "duty to report" where they have reasonable cause to suspect that a child is at risk of abuse, neglect or harm. Partners including health, police, probation and youth offending teams will be required to inform the local authority where they have reasonable cause to believe a child to be at risk.

The Act introduces parallel provisions for relevant partners to report to the local authority someone suspected to be an adult at risk of abuse or neglect. This is supplemented by a new duty for the local authority to make enquiries to determine whether any action is required to safeguard people at risk. The Wales Safeguarding Procedures and All Wales Practice Guides provide information about what this means in practice.

In the rest of this chapter, the information provided relates only to England unless stated otherwise.

12.1 Background

Children's social care plays a critical role in protecting the interests of the child or young person in forced marriage cases. They provide support not only by arranging practical help such as accommodation and financial support, but also by co-operating and working with other agencies such as police, healthcare and education professionals.

12.2 How children's social care can make a difference

Any allegation of forced marriage may give rise to a child falling into the category of a child being in need pursuant to section 17 of the Children Act 1989.[footnote 52] An allegation of forced marriage may also lead to an investigation being carried out under section 47 of the Act. Under section 47, where a local authority has reasonable cause to suspect that a child (who lives in or is found in their area) is suffering or is likely to suffer significant harm, it has a duty to make such enquiries as it considers necessary to decide whether to take any action to safeguard or promote the child's welfare.

Forced marriage is a form of child abuse that places children and young people at risk of neglect, physical, emotional (including psychological) and sexual abuse. Children's social care have a duty to identify children who are likely to suffer significant harm, and to invoke the necessary procedures to safeguard children. The personal safety of the child or young person must be paramount.

Local authorities, with their partners, should develop and publish local protocols for assessment of children where there is a safeguarding concern. A local protocol should set out clear arrangements for how cases will be managed once a child is referred into local authority children's social care and be consistent with the requirements of statutory guidance. The detail of each protocol will be led by the local authority in discussion and agreement with the safeguarding partners and relevant agencies where appropriate.

The local authority is publicly accountable for this protocol and all organisations and agencies have a responsibility to understand their local protocol.

The local protocol should reflect where assessments for some children will require particular care. This is especially relevant for cases relating to children involved in forced marriage.

Existing statutory safeguarding options can be used to protect a child at risk of forced marriage, such as Child in Need Plans, Child Protection Plans, the Public Law Outline or care proceedings. Local safeguarding partners should always consider the additional protection afforded by a Forced Marriage Protection Order (FMPO), which can be sought for the protection of children who have travelled overseas as well as those in the UK.

12.3 Legal options

There are a range of court orders that may be used to protect children and young people. If the risk of forced marriage is immediate, it may be necessary to take emergency action to remove the child or young person from the home in order to protect them. There are a number of approaches to emergency protection, and staff may wish to take advice from their legal department.

A child or young person can be assisted by children's social care to receive protection under the Family Law Act 1996 and the Protection from Harassment Act 1997. Under these Acts the following orders may be sought:

Once a child or young person has left the country, the legal options open to children's social care, other agencies or another person to recover the child or young person and bring them back to the UK are more limited. Applying for a FMPO is often the best course of action.

Depending upon the circumstances and the child's age it may be appropriate for the local authority to apply for a care order, under section 31 of the Children Act 1989. A care order can only be obtained when a child is under the age of 17, or 16 if the child is married.

If the young person cannot be the subject of a care order, the local authority can, nevertheless, assist: either by accommodating the young person under section 20 of the Children Act 1989 or by providing services under section 17 of the Children Act 1989 or in Wales as a child in need of care and support under the Social Services and Well-being (Wales) Act 2014.

A young person who has been the subject of a forced marriage and is at risk of harm from their family is likely to fall within the definition of s.20 Children Act 1989. The young person may, themselves, ask the local authority for accommodation. The request does not need to come from the parents.

12.4 What to do when a child or young person fears they may be forced into marriage

A child or young person may approach children's social care because they are going on a family holiday overseas and they are concerned about this. They may have been told that the purpose is to visit relatives, attend a wedding or because of the illness of a grandparent or close relative. The child or young person may suspect that this is a ploy and that there is an ulterior motive, which is to force them to marry. Or it may be that children have expressed concerns to school or other professionals about arrangements being made for their wedding or engagement in the UK. Children may be withdrawn from school or prevented from accessing higher education. They may also self-harm or attempt suicide. There may also be a history of forced marriage within the family, controlling behaviour from parents or siblings or threats of domestic and 'honour'-based abuse. All efforts should be made to establish the full facts of the case at the earliest opportunity. Please see chapter 2.11 for a full list of warning indicators.

Do not assume that a child or young person is at risk of being forced into marriage simply on the basis that they are being taken on an extended family holiday.

Children's social care professionals should remember too that, following the commencement of new legislation on 27 February 2023 (see Chapter 2), it is an offence to do anything intended to cause a child to marry before they turn 18, even if coercion is not used. In cases where no coercion is used, the child might not demonstrate fear of the proposed marriage, yet the marriage would still be a forced one, and staff should take those cases as seriously as any other.

Response:

12.5 What to do when a third party reports that a child or young person has been taken overseas for the purpose of a forced marriage

Once the child is overseas, the risks to their safety and wellbeing are increased. As with all cases of forced marriage, confidentiality and discretion are vitally important. It is not advisable to immediately contact an overseas organisation to make enquiries. If, through your actions, the family becomes aware that enquiries are being made, they may move the child or young person to another location or expedite the forced marriage. Although the child will no longer be in the jurisdiction of England and Wales, there are steps that children's social care can take, alongside the police and UK courts, to protect and recover a child who is at risk of forced marriage. FMPOs can be applied for when the child is already out of the UK and can be used successfully to repatriate the child. Children's social care have an automatic right to apply for a FMPO; they do not need the permission of the court to do so. Children's social care may also be able to work with local organisations to facilitate support for and repatriation of the child where a FMPO is not viable.

Samera's Story

Samera, 15, from Cardiff, was told she had to go to Somalia to visit her grandmother who was unwell. When Samera arrived in Somalia her mother dropped her off at a boarding school and took her passport away. She told Samera that she was not allowed to leave until she agreed to marry an older man whom she had been betrothed to. The guards at the boarding school were physically abusive to her. Samera had kept a secret phone hidden and managed to call her friend in the UK. Her friend called children's social care to report what had happened. Children's social care applied for a Forced Marriage Protection Order and this was served on Samera's mother, ordering her to make all of the arrangements to bring Samera back into the UK.

Response:

In addition to the general action as set out in chapter 3 and above:

12.6 If a child or young person has already been forced into marriage

There may be occasions when a child or young person approaches children's social care or the police because they have already been forced into marriage. Their spouse may or may not be in the UK.

If the spouse is already in the UK then existing safeguarding procedures should be followed to ensure that the child is not at risk of abuse from their spouse. Children may be particularly at risk of sexual abuse as they may be expected to consummate the marriage that they have been forced into.

If the spouse is not already in the UK, the child may be concerned that they will be forced to act as a sponsor for their spouse's immigration to the UK once they turn 18.

Confronting the family may be extremely risky for the child or young person. They may not get the support they hope for and further pressure may be put on them to support the visa application. Discuss such risks with the child or young person in order to safeguard them.

A spouse who is the victim of a forced marriage can initiate nullity proceedings at any time, or divorce proceedings when more than a year has passed since the marriage. The child or young person should be informed that a religious divorce would not end the marriage under UK law.

If the young person is under the age of 18, is present in the UK without their family, and states that they were forced into marriage and do not wish to remain with their spouse, then children's social care should consider the child or young person in the same manner as an unaccompanied asylum-seeking minor, and should accommodate the young person under s.20 Children Act 1989 or the Social Services and Well-being (Wales) Act 2014.

Local Authority Circular (LAC) 2003 (13) states that where a child has no parent or guardian in this country, the presumption should be that the child would fall within the scope of s.20 Children Act 1989 and become a child "looked after" by a local authority, unless the needs assessment reveals particular factors which would suggest that the child is not a looked after child.

If the young person is under 18 years old and has children, they should still be regarded as an unaccompanied child. Anyone who has been granted indefinite leave to enter or remain, refugee leave, humanitarian protection, discretionary leave or who has a right of abode in the UK has the same entitlements to public funds as a British citizen.

Funding for legal advice ('legal aid') is not counted as public funds, and children and young people may be entitled to legal aid whatever their immigration status.

Children's social care may have the power to make discretionary payments. These payments do not count as public funds.

Children's social care records and statements may be vital evidence in a child or young person's immigration case. This evidence may be placed before an immigration hearing and children's social care may be called as a witness.

Response:

12.7 When a child or young person is repatriated

Sometimes the FMU may ask children's social care for assistance when a child or young person is being repatriated to the UK from overseas.

In these cases, the child or young person may be extremely traumatised and frightened. They may have been held against their will for many months and they may have suffered emotional and physical abuse including rape, sometimes repeatedly or until they become pregnant. Sometimes a child or young person will have risked their life to escape and their family may go to considerable lengths to find them. This makes all victims particularly vulnerable when they return to the UK.

When a child or young person who is a British national arrives at, or contacts, a British Embassy or High Commission, the FCDO can try to repatriate them at the earliest opportunity if possible. The FCDO will always give social care as much notice of the child's or young person's arrival as possible, although sometimes, due to the urgency of the situation, notice is limited.

As far as possible, the FMU will work with the relevant authority in the UK which is applying for a FMPO, to seek to ensure that the costs of return fall on the perpetrators. Where this is not deemed by the relevant authority to be safe, or appropriate, the FMU will identify other potential sources of support. The cost of return should not delay a victim seeking, or receiving, assistance to do so.

The child or young person may need practical help, for example emergency cash, clothes and toiletries. Under section 17 Children Act 1989, social care services may make a payment for a child in need, including the cost of accommodation. The local authority within which the child or young person had their last permanent residence should provide section 17 funding.

Response

12.8 When it is not safe for a child to return to their family

Where the assessment of the child's needs identifies that there is a possibility that a child is suffering significant harm attributable to parental care - which is often the case when parents force a child into marriage - then the local authority must consider taking legal action to protect the child. This might involve an application for an EPO and/or an application for a care order so that the child becomes "looked after" by the local authority. This effectively means that the local authority will share parental responsibility and specify where the child might live safely.

Alternatively, if the young person cannot be the subject of a care order, the local authority may assist by accommodating the young person under section 20 of the Children Act 1989.

Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under section 20 of the Children Act 1989.

If a person who has parental responsibility seeks to remove the child or young person from the accommodation provided by the local authority, the local authority may need to consider taking urgent legal action to ensure that the child is safeguarded.

Care Planning

Children and young people who have been forced to marry and those who are estranged from their families because of their refusal to accept a forced marriage often require long-term accommodation to help them live away from their families and start a new life.

Every looked-after child must have a care plan, which includes information about the child's emotional and behavioural development and what support is available through a care placement to meet the needs of the child. It is important to ensure the child's care plan adequately addresses the specific harms the child has suffered as a result of attempts to force them into marriage.

If a decision is made to place a child or young person with a foster family, it may not be appropriate for them to live with a foster carer from the same community as their birth family. The current regulations[footnote 53] make clear that, while children should be cared for in a way that recognises and respects their individual identity, their ethnicity, culture, religion and linguistic background are only factors for consideration when identifying the best foster family for a child.

A child or young person coming into care may need, and want, to be placed out of their local authority area to ensure they feel safe and are protected from harm, especially where a risk of forced marriage has been identified. Such placements demand effective planning, engagement and information sharing between the placing local authority and the services local to the placement, including, for example, the local Virtual School Heads or Looked After Children Education (LACE) coordinator, who can help to identify appropriate school provision.

The child's allocated Independent Reviewing Officer (IRO) has a crucial role in placement decisions. They are responsible for ensuring that age-appropriate discussions are held with the child about their care and supporting them to access advocacy services, if needed. It is essential that their views are sought and listened to as part of that decision-making process.

It may not be appropriate to discuss the placement with the child's relatives or parents, especially where the child has been identified as at risk of forced marriage. Their role in decision-making will largely be determined by the care order in place as will the way in which the child continues to have contact with their family.

The local authority will need to take the child's or young person's wishes and feelings into account in planning for their care and, once they feel safe, they may wish to move to accommodation that is more independent. The local authority will be responsible for helping to identify options for the young person's future accommodation and supporting them through this transition. Depending on the length of time that they will have been "looked after", the young person may be entitled to continuing support from leaving care services. This means that if a young person has been "looked after" by the local authority for 13 weeks or more, even if the young person ceases to be "looked after", the local authority still has a duty to support them.

Personal Advisers should ensure that Pathway Plans are in place for young people leaving care in order to adequately address any outstanding community or family safety concerns in their move towards independence. They may need to assist young people to take steps to maintain their anonymity, such as by changing their name or National Insurance number.

Always Consider:

12.9 When a spouse has come to the UK from overseas

A spouse may come to the UK from overseas and report that they have been forced to marry overseas. Consequently, they may be suffering domestic abuse or they may have run away. The child or young person may not speak English and may not be aware of the support to which they may be entitled. Again, these cases may be reported to practitioners initially as cases of domestic abuse, missing persons or child protection.

If a young person does not have indefinite leave to enter (ILE), indefinite leave to remain (ILR), humanitarian protection, discretionary leave or a right of abode in the UK, then they are likely to be the subject of a restriction on access to public funds.

Practitioners may not be aware that a young person who is married is entitled to support and that they should still be regarded as an unaccompanied child - therefore, the local authority has certain duties to provide support and accommodation for them (see legal position below).

Response

12.10 Safeguarding disabled children and young people

There have been reports of children and young people with mental ill health, or learning and physical disabilities, being forced to marry. In order to find a spouse, parents may accept a spouse whom they would normally view as unacceptable - such as someone from a lower caste or social group. Sometimes, to ensure a potential spouse is not put off, families may try to hide, play down or make light of a child's or young person's disability. Another motive for forcing a child or young person with a disability to marry is to make certain they will have someone to care for them after their parents have died.[footnote 54]

Some children and young people with a disability will not have the capacity to consent to marriage. Indeed children under the age of 18 in England and Wales cannot legally consent to marriage (the age is 16 in Scotland and Northern Ireland, in the latter case if there is parental or judicial consent). Others may have capacity but be easily coerced or tricked into marriage. Some may be unable to consent to consummate the marriage - sexual intercourse without consent is a serious sexual offence, for example rape. There exists a range of offences within the Sexual Offences Act 2003 to capture non-consensual sexual activity, including causing a person to engage in sexual activity without consent, and the sexual abuse or exploitation of those with a mental disorder, and those with a mental disorder that impedes choice.

Disabled children and young people are particularly vulnerable to forced marriage because they are often reliant on their families for care. They may have communication difficulties and they may have fewer opportunities to tell anyone outside the family about what is happening to them.

All safeguards which are in place to protect non-disabled children from forced marriage apply to disabled children. However, good practice requires agencies to pay specific attention to factors which can ensure that children and young people with disabilities are supported to help themselves, and to identify where they are unable to do so.

Good practice should include:

Disabled children and young people are defined as "children in need" under section 17 of the Children Act 1989. The 2018 revision of the statutory guidance, 'Working Together to Safeguard Children', gives a comprehensive framework for local authorities' duties for safeguarding all children, including disabled children.

Other key legislation and guidance includes:

In Wales:

13. Adult Social Care: Guidelines

Please note that arrangements for meeting the needs of adults with needs for care and support in Wales are set out in the Social Services and Well-being (Wales) Act 2014, and in regulations and guidance made under it (see below). In particular, the Act strengthens safeguarding arrangements for adults by placing on relevant partners a "duty to report" where they have reasonable cause to suspect that an adult is at risk of abuse, neglect or harm. Partners including health, police, probation and youth offending teams will be required to inform the local authority where they have reasonable cause to believe an adult to be at risk.

This is supplemented by a new duty for the local authority to make enquiries to determine whether any action is required to safeguard people at risk.

In the rest of this chapter, the information provided relates only to England unless stated otherwise.

13.1 Background

Adults with care and support needs can be particularly vulnerable to forced marriage.[footnote 55]

In order to find a spouse for an adult with care and support needs, parents may accept a spouse whom they would normally view as unacceptable - such as a person from a lower caste or social group. Sometimes, to ensure a potential spouse is not put off, families may try to hide, play down or make light of a person's disability. Another motive for forcing an adult with care and support needs to marry is to make certain they will have someone to care for them when their parents are no longer able to do so. Sometimes families do not consider the 'arranging' of a marriage for a son or daughter who lacks capacity to consent to be a forced marriage. They often believe they are doing the 'right' thing, particularly if 'force' is not a feature of the marriage.

Some adults with care and support needs may not have the mental capacity to consent to a marriage (see chapter 7: Supporting Victims with Learning Disabilities). Some may be unable to consent to consummate the marriage - sexual intercourse without consent is a serious sexual offence. Compelling, inciting or facilitating a person with impaired capacity for choice to engage in sexual activity without consent is also an offence under the Sexual Offences Act 2003. Additionally, the spouse may also become a victim of physical, sexual or emotional harm.

Adults with care and support needs may be particularly vulnerable if they are reliant on their families for care - they may have communication difficulties, they may have fewer opportunities to tell anyone outside the family about what is happening to them, or they may not recognise the marriage as forced.

13.2 How adult social care professionals can make a difference

The Care Act 2014 placed adult safeguarding for individuals with care and support needs on a statutory footing (in Wales the Social Services and Well-being (Wales) Act 2014 applies). Both Acts highlight the need for cooperation and partnership across organisations to prevent abuse and neglect of adults with care and support needs. Where an adult with care and support needs appears to be at risk of or experiencing abuse or neglect and unable to protect themselves, then under Section 42 of the Care Act 2014, the local authority must carry out safeguarding enquiries. (Similar responsibilities apply under section 19 of the Social Services and Well-being Wales Act 2014.) Agencies have a role to play in ensuring that adults with care and support needs are able to help themselves. Good practice should include:

Some cases of forced marriage take place in the UK; in other cases an adult with care and support needs may be taken overseas and forced to marry. In either situation, adult social care professionals, including social workers, should be ready to give guidance to the person about their rights and the choices open to them, and to take action in partnership with other agencies to protect them from harm.

Each Local Authority will have local protocols and procedures to protect adults with care and support needs from abuse. The Care Act requires each local authority to set up a Safeguarding Adults Board (SAB) in order to provide assurance that local safeguarding arrangements and partners are acting to help and protect adults who they suspect are at risk of abuse or neglect. Wales has regional Safeguarding Adults Boards whose function is to prevent, and to protect adults with care and support needs, from abuse or neglect. Key legislation and guidance include:

In Wales:

Violence against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015

Working Together to Safeguard People - Volume 4 - Adult Protection and Support Orders 2016

Working Together to Safeguard People - Volume 6 - Handling individual cases to protect adults at risk 2018

Wales Safeguarding Procedures: Adults at risk

13.3 Legal position

If an individual lacks the capacity to consent to marriage, no one else may make the decision to marry on their behalf. They cannot therefore legally get married. One course of action is for the local authority to make an application to the Court of Protection under the Mental Capacity Act 2005 for orders to protect them (declaratory relief). If satisfied that the adult lacks capacity the court can grant a declaration to this effect. The court can also grant injunction(s) to restrain family members from arranging a marriage for them or to prevent them being taken overseas for the purpose of a marriage.[footnote 56]

If an adult with suspected learning disabilities has left the country and there is a suspicion that they will be forced marriage and it is not known whether they lack the capacity to consent to marriage, it is recommended that consideration be given to applying for a Forced Marriage Protection Order (FMPO) to ensure they are returned. Following that, a capacity assessment would need to be carried out to determine their capacity to consent to marriage.

While an adult with care and support needs can make an application in their own name, acting with the assistance of a "litigation friend", they may not be in a position to take such action because of their personal circumstances. In this case, you may need to consider whether the local authority should do so.

A spouse who is the victim of a forced marriage can initiate nullity proceedings (as long as these are initiated within three years of the date of the marriage) or divorce proceedings to end the marriage. They should be informed that a religious divorce would not end the marriage under UK law.

Adults with care and support needs can also take action to protect themselves under the Family Law Act 1996 and the Protection from Harassment Act 1997. Under these Acts the following orders may be sought:

Irfan's story

Irfan, 29, from Leeds, has a learning disability and accesses a day centre four days a week. Irfan's father was approached by a priest who informed him that his son's disability would improve if he went overseas and married the priest's niece Miriam. Irfan's father returned back to the family home to plan the marriage. He informed the centre that Irfan would be travelling out of the country to get married. Fortunately, the ‎day centre staff reported this information to Irfan's social worker. The social worker handled this as a safeguarding issue and obtained a Forced Marriage Protection Order to protect Irfan from being taken overseas.

13.4 What to do when an adult with care and support needs fears they may be forced into marriage

An adult with care and support needs may approach an adult social care professional, their local authority or social care provider because they are going on a family holiday overseas and they are concerned about this. They are often told that the purpose is to visit relatives, attend a wedding or because of the illness of a grandparent or close family relative. They may suspect that this is a ploy and that there is an ulterior motive, which is to force them to marry.

Do not assume that an adult with care and support needs is at risk of being forced into marriage simply on the basis that they are being taken on an extended family holiday. These assumptions and stereotypes can cause considerable distress to families. All efforts should be made to establish the full facts of the case at the earliest opportunity.

Response:

13.5 What to do when there are warning indicators that an adult with care and support needs will be forced into marriage

Sometimes an adult with care and support needs may not be able to communicate concerns that they will be forced into a marriage. Or they may not be aware of plans to force them into marriage. However, there may be significant warning signs (as outlined in chapter 2.11) that there is a risk.

Again, it is important not to make assumptions, but to thoroughly investigate in order to ascertain whether there is sufficient evidence of a risk of forced marriage. If possible, it is best practice to discuss these concerns with the adult with care and support needs to establish their understanding of the situation and evaluation of the risk. However, in some cases this may escalate the risk if it is likely that the adult with care and support needs will report your concerns to the family/perpetrators. The response as above should be followed in this situation.

13.6 When a third party reports that an adult with care and support needs has been taken overseas for the purpose of a forced marriage

Sometimes it may be a concerned friend, relative, partner, agency, teacher or carer who reports that an adult with care and support needs is missing. These cases may initially have been reported to the FMU, police, education professionals or a voluntary group, who will have then passed the concerns to a local authority.

In this situation existing safeguarding procedures should be followed and the response as above would apply. In addition, it is helpful to keep in contact with the third party so as to stay updated on any contact they may receive from the adult with care and support needs. Where possible it is best practice to establish direct contact with the adult with care and support needs to ascertain their wellbeing and the risk of forced marriage.

It may be helpful to consider whether there is sufficient evidence to obtain a Forced Marriage Protection Order to facilitate the safe return of the adult with care and support needs to the UK.

13.7 If an adult with care and support needs has already been forced into marriage

Although many cases of forced marriage come to light when an adult with care and support needs is reported missing or there are allegations of abuse and domestic abuse, some cases are brought to the attention of social workers or the police when the adult with care and support needs is forced to act as a sponsor for their spouse's immigration to the UK. They are frequently reluctant to tell UK Visas and Immigration that it was a forced marriage because of threats and fear of reprisals from the family, they may not be able to communicate or they may not understand that they were not able to give valid consent for the marriage. A person whose application to enter the UK as a spouse is refused has a right to know the reasons why - and the right to appeal against the decision. This can place the adult with care and support needs in a difficult situation.

Confronting their family may be extremely risky for the adult with care and support needs. They may not get the support they hope for and further pressure may be put on them to support the visa application. These risks must be discussed with them if only to exclude this option.

A person may wish to prevent a successful visa application for their spouse. There are ways a visa application can be refused, although this sometimes cannot be done without all parties concerned being aware that the person does not wish to sponsor their spouse's visa application. The FMU can be contacted to talk through the person's options.

Cases of forced marriage may initially be reported to adult social care professionals, including social workers, as cases of domestic abuse. Either spouse forced into marriage may experience years of domestic abuse, but may be unable to leave due to fear of losing their children, lack of family support, economic pressures and other social circumstances. The fact that they were forced to marry may only become apparent years after the marriage has taken place.

Response:

13.8 When an adult with care and support needs is repatriated to the UK from overseas

In cases where the FMU have been notified of an adult with care and support needs who is at risk of forced marriage, the FMU will notify adult social care at the earliest opportunity. However, in some situations adults may not give consent for this referral and the FMU will only be able to refer without consent if there are imminent safeguarding concerns.

A referral may be sent to adult social care by the FMU at the point where an adult with care and support needs is due to return to the UK and will require additional support once in the UK. As much notice as possible will be given to adult social care of this plan. For further information on how adult social care and the FMU can work together to support adults with care and support needs please see: adass-fco-consular-assistance-guidance-final-march-2019.pdf

Response:

Do:

Do not:

Put either yourself or the victim at risk of harm.

Send them back to the family home against their wishes.

Inform family members or friends of their whereabouts.

Attempt to be a mediator or encourage mediation, reconciliation, arbitration or family counselling.

13.9 When a spouse of an adult with care and support needs has come to the UK from overseas

A spouse may come to the UK from overseas and report that they have been forced to marry overseas. Consequently, they may be experiencing domestic abuse or they may have run away. The adult with care and support needs may not speak English and may not be aware of the support to which they may be entitled. Again, these cases may be reported initially as cases of domestic abuse or as missing persons.

If an adult with care and support needs does not have indefinite leave to enter (ILE), indefinite leave to remain (ILR), leave granted under the Destitution Domestic Violence concession, humanitarian protection, discretionary leave or a right of abode in the UK, then they are likely to be the subject of a restriction on receiving public funds. Public funds include Universal Credit, State Pension Credit and Housing Benefit. This means that they may not be able to access refuge accommodation (although some refuges will offer places). As a result, they may experience difficulty in finding alternative accommodation and a means by which to live. This may lead them to feel they have no option but to remain in the marriage and to feel unable to co-operate with social care services or anyone they see as being in a position of "authority".

It should be noted that support from social services is not a public fund in this context but the victim might wrongly perceive that they will be unable to access these services as a result of their inability to access public funds.

Further details of the types of local authority support that might be available can be found in chapter 14 of this guidance.

Response:

Anyone who has been granted indefinite leave to enter or remain, refugee leave, humanitarian protection, discretionary leave or who has a right of abode in the UK is entitled to access public funds on the same basis as a British citizen.

In exceptional circumstances, someone who is subject to immigration control may still be eligible to access certain benefits. This is because they may benefit from an exception to the general 'no recourse to public funds' rule. These exceptions are generally in place to meet the UK's legal obligations and they are set out in legislation[footnote 57].

Funding for legal advice ('legal aid') is not counted as public funds, and adults with care and support needs may be entitled to legal aid whatever their immigration status.

If they are experiencing domestic abuse, the domestic violence provisions under Rule 289A and Appendix FM of the Immigration Rules or Part 6 of the Immigration Rules Appendix Armed Forces may apply. Under these Provisions, social care services can provide evidence of domestic abuse in the form of a letter or report.

14. Local Housing Authorities: Guidelines

14.1 Background

For anyone, leaving their family can be difficult, but for people from black and minority ethnic communities or those with a disability or illness, it can be especially hard. Family occupies a very important role in people's lives, and a person may have no experience of life outside their family.

Those who do leave often live in fear of their own families, who will often go to considerable lengths to find them and ensure their return. On their return, they are often subjected to violence and threats. Therefore, accommodating those fleeing forced marriage is extremely important and local authorities play an important role in supporting those who are at risk of homelessness due to forced marriage into alternative safe accommodation.

The Homelessness Reduction Act 2018 placed new duties on local housing authorities to take reasonable steps to try to prevent and relieve a person's homelessness. These new duties apply when an applicant is both homeless and eligible for assistance, irrespective of whether a person has 'priority need' or may be regarded as being 'intentionally homeless'. Local authorities must work with people who are homeless or at risk of homelessness to develop personalised housing plans, which focus on the needs and circumstances of the applicant.

Local housing authorities also have a duty to secure suitable accommodation for applicants who are eligible for assistance, unintentionally homeless and who fall within a priority need group.

Under current homelessness legislation a person who is pregnant, has dependent children, or is homeless as a result of that person being a victim of domestic abuse, already has priority need for accommodation. Other priority need categories can be found in Chapter 8 of the Homelessness Code of Guidance.

In Wales, as housing is a devolved matter, the arrangements for those who are homeless or threatened with homelessness are set out in Part 2 of the Housing (Wales) Act 2014, and the supporting guidance made under it. The focus of this legislation is prevention and places duties on local authorities in Wales to take all reasonable steps to try to prevent and relieve a person's homelessness. Welsh local authorities have a duty to secure accommodation for those who are eligible for assistance, unintentionally homeless and who fall within a priority need group.

Some people may not have leave to remain in the UK and therefore will not have recourse to public funds (see chapter 14.4). In both England and Wales, local authorities must assess what support they may lawfully give to each person on an individual basis, considering a person's specific circumstances and support needs.

Whatever their situation, front line staff in local housing authorities should be aware of the risk of harm facing those who have been or may be forced to marry.

Housing authorities should be mindful of their duties under the Data Protection Act 2018 when receiving requests for information from third parties such as family, friends, councillors, GPs or MPs regarding an applicant's whereabouts. They must have explicit consent from the applicant before disclosing information to a third party and should consider whether it is appropriate, particularly where the applicant could be a victim of forced marriage. The applicant's safety must be paramount. If an officer is in any doubt about such a request, they should refrain from disclosing any information.

14.2 How housing authority staff can help

Follow the general action as set out in chapter 3.

When a forced marriage victim presents themselves to a local authority requesting emergency accommodation, it often means that they have left their current situation for good. In most cases, there will be no going back. Helping the victim to find accommodation quickly reduces the burden of instability and uncertainty as they work towards establishing safety for themselves with the help of professionals.

Asking about the forced marriage:

If the victim is accompanied by an escort, make sure that you ask privately if it is safe for their escort to be part of the meeting. Once you are satisfied the victim is safe to discuss their experiences, ask sensitively for the applicant to disclose what has happened to them and respond to the questions:

Then repeat their answers back to them. If an interpreter is needed, it is best to use a professional who is impartial and has a duty to maintain confidentiality. Do not use family or friends of the victim.

You should sensitively listen to the experiences of the victim and make a decision based on that conversation and any further evidence.

If you need more information, check for potential warning signs that the individual is a victim of forced marriage (chapter 2.11 further details).

Make sure you know about the services available locally to support people who have experienced domestic abuse and how to make a referral.

After a disclosure:

Let the person know of the Forced Marriage Unit's (FMU) details. Let them know that they can make direct contact to discuss other concerns via the telephone helpline (020 7008 0151) or email ( fmu@fcdo.gov.uk).

Forced marriage is a form of domestic abuse, so their safety and the safety of others, including any children who may be affected, is the first priority.

Make sure you are aware of the Data Protection Act 2018, professional guidelines and local protocols about confidentiality and information sharing. Check that you know about:

getting consent from people to share their information;

telling people when and with whom their information is being shared; and

when it may be necessary to share information without consent to keep the person safe.

Share information about specialist services and offer a referral, including to a local support group.

Consider the type of support needed, both immediate and longer-term.

Record your discussion and the actions you have agreed. The actions can be recorded as part of the personal housing plan which will include actions (or 'reasonable steps') to be taken by the authority and the applicant to try to prevent or relieve homelessness.

Recognise the risk that those fleeing forced marriage face and, in line with the Homelessness Code of Guidance in England, and similar provision in the Code of Guidance on the Allocation of Accommodation and Homelessness in Wales, ensure that an applicant is not referred to another local authority where they have a local connection if they would be at risk of domestic abuse in that area. A victim's safety should take precedence in making decisions about referring an applicant.

Take account of any social considerations relating to the applicant and their household that might affect the suitability of accommodation offered to them to prevent or relieve homelessness, or under the main housing duty. Take into account any risk of domestic abuse or violence or racial harassment in a particular locality. Where the applicant is not able to stay in the current home, housing authorities may need to consider the need for accommodation that would not be found by the perpetrator (which may involve an out of district/county placement) and which has security measures and appropriately trained staff to protect the occupants. Housing authorities may consider implementing a reciprocal agreement with other housing authorities and providers to facilitate out of area moves for victims of forced marriage.

There may be occasions where victims of forced marriage seek emergency assistance having left behind ID and other documentation that may be required to support their application. Housing authorities should work with police, other agencies (as appropriate) and the applicant to ensure that essential documentation can be recovered or replaced without putting the applicant at further risk. The victim must not be asked to return to their property to collect documentation if there is any risk to their safety.

Recognise that some adults may have been held against their will outside the UK for the purpose of forced marriage and these circumstances should be taken into consideration when applying the habitual residence test.

Note that where a homelessness application is made by a couple due to forced marriage, if requested and safe to do so, local authorities should seek to accommodate the couple together. However, it is imperative that it is established quickly that both parties feel comfortable and safe enough to be accommodated together. This should be ascertained when asking the questions listed at paragraph 14.2 asking about FM questions.

Where an applicant has priority need, section 206 of the Housing Act 1996 requires local authorities to provide accommodation which is suitable for the household.

14.3 Priority need categories

The following priority need categories are likely to be the most relevant when dealing with adults who are homeless in these cases:

In England:

a pregnant woman or a person with whom she resides or might reasonably be expected to reside

a person with whom dependent children reside or might reasonably be expected to reside

a person who is vulnerable as a result of old age, mental illness, learning or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside

a person who is homeless as a result of that person being a victim of domestic abuse

a person aged 16 or 17 who is not a 'relevant child' or a child in need to whom a local authority owes a duty under section 20 of the Children Act 1989

a person under 21 who was (but is no longer) looked after, accommodated or fostered between the ages of 16 and 18 (except a person who is a 'relevant student'[footnote 58])

a person aged 21 or over who is vulnerable as a result of having been looked after, accommodated or fostered (except a person who is a 'relevant student')

a person who is vulnerable as a result of ceasing to occupy accommodation because of violence from another person or threats of violence from another person which are likely to be carried out

Section 177 of the Housing Act 1996 makes clear that it is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to violence or domestic abuse against that individual, or against a person who would normally or reasonably be expected to live with them.

Section 8.16 of the Homelessness Code of Guidance stipulates that 'It is a matter of evaluative judgement whether the applicant's circumstances make them vulnerable'. When determining whether an applicant in any of the categories set out in paragraph 8.14 of that code is vulnerable, the housing authority should determine whether, if homeless, the applicant would be significantly more vulnerable than an ordinary person would be if they became homeless. The assessment must be a qualitative composite one taking into account all of the relevant facts and circumstances and involves a consideration of the impact of homelessness on the applicant when compared to an ordinary person if made homeless. The housing authority should consider whether the applicant would suffer or be at risk of suffering harm or detriment which the ordinary person would not suffer or be at risk of suffering, such that the harm or detriment would make a noticeable difference to their ability to deal with the consequences of homelessness'.

In Wales (section 70 of the Housing (Wales) Act 2014):

14.4 No recourse to public funds

People whose immigration status means they have no recourse to public funds have limited options for housing and financial support.

In both England and Wales, housing authorities have a duty to provide or secure the provision of advice and information about homelessness and the prevention of homelessness, free of charge. These services must also be available to any person in their district, including people who are not eligible for further homelessness services as a result of their immigration status.

Local authorities should advise ineligible applicants that women and men who have been victims of domestic abuse can apply for Indefinite Leave to Remain (ILR) if they meet the criteria set out in the domestic violence provisions in the Immigration Rules. However, until their application is successful, they will have no recourse to public funds - this means they will not be eligible for benefits such as universal credit or housing benefit. In practice, it is extremely difficult to access any funding for victims while they await the outcome of their application, hence the introduction of the Destitution Domestic Violence Concession.

The Destitution Domestic Violence Concession supports those who have entered or stayed in the UK as a spouse, unmarried partner, same-sex or civil partner of a British Citizen, or settled citizen and this relationship has permanently broken down due to domestic violence and abuse. A victim may be eligible if:

(a) they came to the UK or were granted leave to stay in the UK as the spouse or partner of a British Citizen or someone settled in the UK;

(b) their relationship has permanently broken down due to domestic violence and abuse.

They can then apply to the Home Office for limited leave to remain (three months) under the Destitution Domestic Violence Concession[footnote 59] to enable them to access public funds and advice, while they prepare and submit an application for indefinite leave to remain (or make alternative arrangements).

It is best practice to signpost adults who have no recourse to public funds to appropriate immigration advice services to ascertain whether they are eligible to apply.

15. Airport Personnel: Guidelines

This chapter is specifically aimed at UK Border Force, and other members of staff within ports of departure/arrival who may come into contact with potential victims either leaving or returning to the UK from overseas.

This guidance should accompany the Virtual College e-learning on forced marriage, which is mandatory for all Border Force officers. They are also encouraged to read the Border Force guidance on forced marriage and may wish to consult the forced and early marriage information pages on the Border Force OCELOT app.

The majority of forced marriage cases in the UK involve travel overseas, and awareness at the UK border is key to supporting victims. Often the victim will be taken overseas without knowing that they are to be married, on the pretext of a family holiday, the wedding of a relative or the illness of a grandparent, among other scenarios. On arrival, their documents, passports, money and mobile phones are often taken away from them.

Likewise, at the UK border, there will be victims returning to the UK or arriving in the UK for the first time who may be in need of support. A victim may arrive in the UK from overseas and report that they have been forced to marry abroad. They may have suffered from domestic abuse or have run away. They may not speak English and may not be aware of the support to which they may be entitled. There may be circumstances when they are too frightened to self-identify so it is important that those coming into contact with them understand this crime, are alert to indicators and respond effectively when required.

15.1 Countries with high prevalence

Generally, the countries with the highest number of forced marriage cases reported within the UK have heritage links to Pakistan, Bangladesh, India, Somalia, Afghanistan, Iraq and Romania. However, in 2020, the FMU handled cases relating to 54 countries outside the UK.

15.2 Outbound flights

What are the possible indicators of forced marriage and what to look for when the potential victim is leaving the UK? Note: This is not an exhaustive list.

Physical observations

Behaviour of the victim

Behaviour of those travelling with the victim

What to do if a potential victim asks for help

15.3 Inbound flights

What are the possible indicators of forced marriage when the potential victim is returning to the UK? Note: This list is not exhaustive.

Physical observations

Behaviour of the victim

What to say to the potential victim

Baggage search

During a routine baggage search, if elaborate or what appear to be 'party' outfits are found, including footwear, hair accessories and boxed jewellery items, ask potential victims the following questions gently: "What sort of holiday were you going on?" "How long did you stay?" "Did you attend lots of functions/parties?" "Can you tell me a bit about your outfits?" "Who were they for?"

If they mention their wedding, and display any of the above behaviours, ask the potential victim: "Is everything ok or would you like to talk in private?" Assure them that you are only there to help and provide them with support.

15.4 Key points to remember

Should concerns arise try to speak to the person alone, if at all possible without putting the victim at risk.

Document conversations, concerns and observations in writing as soon as possible and email this to fmu@fcdo.gov.uk.

Any case should also be referred to a specialist Border Force Safeguarding & Modern Slavery (SAMS) Officer to manage.

Remember that, following the commencement of new legislation on 27 February 2023 (see Chapter 2), it is an offence to do anything intended to cause a child to marry before they turn 18, even if coercion is not used. In cases where no coercion is used, the child might not demonstrate fear of the proposed marriage, yet the marriage would still be a forced one, and staff at the border should take those cases as seriously as any other.

In all urgent cases where assistance is needed immediately contact airport police or dial 999. Remember that Border Force staff have no powers to prevent people from leaving the UK.

16. Legal Protections

16.1 Legal position

Section 121 of the Anti-social Behaviour, Crime and Policing Act 2014 provides that:

(1) A person commits an offence in England and Wales if he or she-

(a) uses violence, threats or any other form of coercion for the purpose of causing another person to enter into the marriage, and

(b) believes, or ought to reasonably believe, that the conduct may cause the other person to enter into the marriage without free and full consent.

(2) In relation to a victim who lacks capacity to consent to marriage, the offence under subsection (1) is capable of being committed by any conduct carried out for the purpose of causing the victim to enter into a marriage (whether or not the conduct amounts to violence, threats or any other form of coercion).

(3) A person commits an offence under the law of England and Wales if he or she-

(a) practices any form of deception with the intention of causing another person to leave the United Kingdom, and

(b) intends the other person to be subjected to conduct outside the UK that is an offence under subsection (1) or would be an offence under that subsection if the victim were in England and Wales.

(3A) A person commits an offence under the law of England and Wales if he or she carries out any conduct for the purpose of causing a child to enter into a marriage before the child's eighteenth birthday (whether or not the conduct amounts to violence, threats, any other form of coercion or deception, and whether or not it is carried out in England and Wales).

The maximum penalty for the criminal offence of forced marriage is seven years imprisonment.

In addition to the specific offences of forced marriage, there are several other offences that may be charged in forced marriage situations. Perpetrators - usually parents or family members - may be prosecuted for offences including fear or provocation of violence, common assault, actual bodily harm, grievous bodily harm, harassment, stalking, common assault, kidnap, abduction, theft (of passport), threats to kill, false imprisonment and murder. The Crown Prosecution Service (CPS) is responsible for making the decision on which offence/s to prosecute on the evidence available. It should also be noted that sexual intercourse without consent is a serious sexual offence, for example rape, regardless of whether this occurs within a marriage or not.

16.2 Extraterritorial Jurisdiction

The Anti-social Behaviour, Crime and Policing Act 2014 also provides extraterritorial jurisdiction over the offences of forced marriage. The provisions for subsections 1-3 of section 121 are slightly different to those for subsection 3A (see section 16.1 above).

In the case of the offences in subsections 1 and 2, the act is an offence under domestic law and triable in the courts of England and Wales if any of the three following scenarios applied at the time of the conduct:

(a) the person or the victim or both of them are in England or Wales,

(b) neither the person nor the victim is in England or Wales but at least one of them is habitually resident in England and Wales, or

(c) neither the person nor the victim is in the United Kingdom but at least one of them is a UK national.

In the case of the subsection 3A offence (doing any conduct to cause someone to marry before they turn 18, even without coercion or deception), the act is an offence under domestic law and triable in the courts of England and Wales if any of the three following scenarios applied:

(a) the conduct is for the purpose of causing the child to enter into a marriage in England or Wales;

(b) at the time of the conduct, the person who did the conduct or the child is habitually resident in England and Wales; or

(c) at the time of the conduct, the child is a United Kingdom national who-

(i) has been habitually resident in England and Wales, and

(ii) is not habitually resident or domiciled in Scotland or Northern Ireland.

16.3 Validity

Some forced marriages will be legally valid and will subsist unless and until an annulment is obtained or a divorce is granted by the court. Others will be legally void but a party may still seek a nullity order to document this. There are strict legal requirements that govern whether a marriage is valid under UK law. Whether an overseas marriage is legally recognised will generally depend on whether it complied with the legal requirements of the country in which the marriage took place. When considering the validity of a marriage, particularly a marriage that took place overseas, specialist legal advice should be sought. Agencies should also be mindful that a marriage is not automatically void because it was found to be a forced marriage.

16.4 Forced Marriage Protection Orders (FMPOs)

A FMPO is a civil law measure which can be sought under section 63A of the Family Law Act 1996 ("the 1996 Act").[footnote 60] The aim of a FMPO is to protect and safeguard a person who has been, or is being forced into, marriage. FMPOs are made by the family courts and can be made in emergency situations so that immediate and enforceable protection can be put in place. This is known as an ex-parte or without notice order as the relevant documents will not have been served on the respondents. A FMPO is unique to each case and contains legally binding prohibitions, restrictions and/or requirements relating to and aimed at changing the behaviour of a person or persons who have forced or attempted to force, or who may force or attempt to force, someone into marriage. Such prohibitions and conditions can include, for example, a requirement to surrender the passport of the person to be protected to prevent them being taken abroad for the purpose of forced marriage.

The following people can apply for a FMPO under section 63C(2) and (3) of the 1996 Act:

the victim of a forced marriage or the person at risk of being forced into a marriage (victims and people at risk are both referred to as the "person to be protected" (PTBP)); or

a relevant third party (RTP). A 'RTP' means a person specified by order[footnote 61] of the Lord Chancellor who may apply on behalf of a victim without the leave of the court. Currently, this only extends to local authorities; or

any other person on behalf of the PTBP with the permission of the court (for example, the police, voluntary sector support service, a friend or a family member).

The PTBP may be an adult or a child. Applications can be made by a person or by their legal representative, if they have one.

The PTBP and RTPs can apply without permission of the court. Anyone else will need permission of the court to make an application. Children who apply for a FMPO may have a 'next friend' or children's guardian to assist them, but do not have to, if the court agrees, or if they have a legal representative who considers that the child has the capacity to give instructions to the legal representative.

Applications can be made to the Family Division of the High Court, but only if a case relating to the same parties is already being heard in the High Court or if the court agrees that the application can be made in the High Court. In other cases, applications should be made to the Family Court.

A FMPO can apply within England and Wales or abroad - where the PTBP has been taken. For example, an order may include a provision that a person overseas must be enabled to speak with a police officer, social worker, legal representative, or a consular officer. However, the Foreign, Commonwealth and Development Office, and any High Commission asked to assist in such cases, can only provide consular assistance to British nationals, dual nationals not in countries of their other nationality (except in exceptional circumstances including forced marriage), or in certain circumstances Commonwealth nationals, and in accordance with local laws.

A FMPO is not specifically enforceable in any other jurisdiction. Should an order be made seeking to bind someone abroad it may be necessary to seek to enforce it in a foreign court. The courts of England and Wales have no jurisdiction in foreign countries. In cases where a PTBP has been removed overseas the application for an order should be made to the High Court so that if necessary it can make orders under its inherent jurisdiction alongside the powers under the Family Law Act 1996. A High Court order also has greater recognition in some foreign jurisdictions as it facilitates the use of bilateral treaties and protocols.

In addition to the specific remedy in the 1996 Act, there are several other civil and family orders that can be made to protect those threatened with, or already in, a forced marriage. See the other orders covered in this chapter.

16.5 Circumstances in which to apply for a FMPO

Victims of forced marriage may be reluctant to take legal action to protect themselves because of fear of criminalising those involved and the potential repercussions, including threats to their physical safety, and the alienation and stigma involved from their family and community. They may also not be in a position to take legal action on their own behalf.

Those working in child protection and with adults at risk of harm are most likely to come across cases of forced marriage and need to consider the option of applying for a FMPO alongside other existing measures of protection in order to discharge their statutory duties.

FMPOs can be an effective means of safeguarding victims and potential victims, preventing a forced marriage from taking place or, if the marriage has already taken place, supporting and mitigating the consequences of that for the victim.

16.6 Applying for a FMPO

Further information on how to apply for a FMPO, including links to the application forms, can be found here: Apply for a forced marriage protection order: How to apply - GOV.UK (www.gov.uk)

The applicant can request terms to be included within the FMPO, although it will be up to the court to decide what the terms are. The terms of the order issued under the 1996 Act can be tailored to meet the specific needs of the PTBP. These terms may relate to conduct inside and outside England and Wales. FMPOs can be made against people who are forcing or are attempting to force a person into marriage, or who may do so. They can also be made against people who are, or may become, involved in other respects, such as those who aid, abet, counsel, procure, encourage or assist another to force, or attempt to force, a person to enter into a marriage, or who conspire to do so. The order may be made for a specified period or may last until it is varied or discharged. Seeking specialist legal advice is always recommended.

Section 63D of the 1996 Act allows the court to make a FMPO even though notice of the application has not been given to the respondent(s). This is known as an ex parte order, where the court considers it "just and convenient" to make the order. In deciding whether to do so, the court will have regard to all the circumstances, including any risk of significant harm to the PTBP or another person if the order were not made immediately, or whether the applicant would be deterred or prevented from pursuing an order if it were not made immediately. The court will also consider if there is reason to believe that the respondent is aware of the proceedings and is deliberately avoiding service and whether any delay in achieving some form of service would cause serious prejudice to the PTBP or (if a different person) to the applicant.

It is possible for the court to make a FMPO in the absence of the PTBP: for example, where a local authority makes the application rather than the PTBP doing so. This may be necessary if the PTBP is in immediate danger or at risk of being taken abroad.

A FMPO made without prior notice being given to the PTBP and/or the respondent(s) will likely be made for a limited period, and will be referred to as an "interim" FMPO.[footnote 64] The PTBP and the respondents will be served with a copy of the FMPO and the application. The court will list another hearing which the PTBP and respondent(s) will be invited to attend in order to make their representations. The court will then decide whether to make a further FMPO.

If the PTBP decides to withdraw their application for a FMPO, every effort should be made to ensure that they are withdrawing of their own free will and are not being coerced.

16.7 Terminology used in FMPOs

FMPOs often include the following terms:

"The respondents are forbidden, whether acting alone, jointly, with another or by instructing, encouraging or suggesting to another person, from:

"The respondents are ordered to:

Where the person to be protected is abroad and needs to be repatriated to the UK, the following terms are often used:

16.8 Undertakings instead of the court making a FMPO

The court may accept an "undertaking" from the respondent instead of making a FMPO (section 63E of the 1996 Act).

However, the court cannot accept an undertaking if it appears to the court that (a) the respondent has used or threatened violence against the PTBP and (b) that for the PTBP's protection it is necessary to make a FMPO so that any breach of it may be punished under section 63CA of the 1996 Act (see below).

If a respondent does give an undertaking, it is enforceable by the court in the same way as a FMPO would be.

16.9 Breach of a FMPO

A breach of a FMPO is punishable as a civil contempt of court or as a criminal offence. Under section 63CA of the 1996 Act, the breach of a FMPO without reasonable excuse is a criminal offence with a maximum penalty of five years' imprisonment, a fine or both.[footnote 65] This means the police can arrest a person who breaches the terms of an order without the need for the court to attach a power of arrest to the order or for the victim to apply to the Family Court (or to the High Court) for an arrest warrant.

Following a police investigation of any breach, the CPS will decide whether to proceed with a prosecution by applying the two-stage test in the Code for Crown Prosecutors: whether there is sufficient evidence to provide a realistic prospect of conviction; and, if so, whether a prosecution is in the public interest.

As an alternative to the criminal route, it is possible to apply to the court which made the order for the breach to be punished as a contempt of court (the relevant contempt being failure to comply with a court order). The FMPO must have contained a penal notice for it to be capable of enforcement by an order for committal (this is explained in more detail in Part 37 of the Family Procedure Rules 2010).[footnote 66] The person making the committal application must use Form FP2 to set out in full the grounds for making the application and each act of contempt (breach). The applicant may also apply for a warrant of arrest, which must be supported by a sworn statement setting out how the order or undertaking has been breached. The application must be made on Form FL407A "Warrant of Arrest Forced Marriage Protection Orders".

A person arrested under an arrest warrant has to be brought before the court, and if the committal application is not determined immediately, the person may be remanded in custody or on bail (section 63K and Schedule 5 to the 1996 Act make detailed provision).

Generally, a finding of civil contempt may be punished by a fine, or committal to prison for up to two years (which may be immediate or suspended) although the powers of different levels of judges in the family court to impose sanctions for contempt of court differ.

If someone has been convicted of the breach offence in a criminal court they cannot also be punished for contempt of court, and vice versa.

16.10 Discharging and varying a FMPO

Under section 63G of the 1996 Act, the court can vary or discharge a FMPO. An application must be made on Form FL403A (Application to vary, extend or discharge a Forced Marriage Protection Order).[footnote 67]

16.11 Emergency Protection Order (EPO) s.44 Children Act, 1989

If the police are unwilling to take a child or young person into police protection, or if, for any reason, such an action is not appropriate, or if the situation cannot be resolved during the 72 hours of police protection, an EPO should be considered. The application can be made by anyone including social workers, police, youth workers, advocates or friends of the child or young person, but in practice it is usually made by children's social care services.

An EPO acts as a direction to any person in a position to do so (for example the parents) to produce the child to the applicant (for example children's social care), and authorises the applicant to remove the child and keep them in accommodation provided by the applicant. It can also authorise the prevention of a child being removed from a hospital or any other place in which they were being accommodated immediately before the order. The court can give directions in the EPO about any contact which the child can have with any named person, as well as directions about medical or psychiatric examinations/other assessments of the child. The court can also attach an exclusion requirement to an EPO which can exclude the relevant person from the home, and from a designated area around the home. A power of arrest can be attached to the exclusion requirement.

An EPO results in the applicant being granted parental responsibility for the child, although the parental responsibility must only be exercised to the extent that it is necessary to safeguard or promote the child's welfare. An EPO lasts for up to eight days but it may be extended by application to the court for up to a further seven days if the court has reasonable cause to believe the child is likely to suffer significant harm if the EPO is not extended. The EPO can only be extended once.

Where a local authority is informed that a child who lives in or is found in their area is subject to an EPO, they must make enquiries under section 47 of the Children Act 1989.

Where an EPO has been granted to an applicant who is not the local authority, and the local authority is of the opinion that it would be in the child's best interests for the applicant's responsibilities to be transferred to them, the local authority shall, having complied with requirements set out in the legislation, be treated as though they were the applicant (see the Emergency Protection Orders (Transfer of Responsibilities) Regulations 1991).[footnote 68]

The court has the power to grant orders without notice being given to parents or on short notice, but will only consider applications without notice in high-risk cases where the child's safety would be endangered if the parents knew of the application, or if, for other reasons, it is not possible to notify them. In exceptional cases, where the application is particularly urgent, it can be made by telephone.

An application to the court for an EPO to be discharged can be made by:

If it is necessary to protect the child or young person, the court should be asked for an order which states that there be no contact (or that there be restricted contact) during the period of the EPO. If this is not asked for, there is a presumption of reasonable contact.

16.12 Care orders and supervision orders

Sometimes, an EPO is followed by an application from the local authority for a care order (s.31 and s.33 Children Act 1989). The effect of a care order is to place a child in the care of the local authority, which shares parental responsibility for the child with the child's parents under the order. It shall be the duty of the local authority designated by the order to receive the child into their care and keep them in their care while the order remains in force.

The local authority can also apply for a supervision order (s.31 and 35 of the Children Act 1989), the effect of which is to impose a duty on the local authority to advise, assist and befriend the child. It can require the child to comply with any directions given by the local authority which require them to live in a specified place, do certain activities and report to a particular place at a set time. It does not give the local authority parental responsibility.

A court will only make a care or supervision order (including interim care and supervision orders under s.38 Children Act 1989) if it is satisfied that there are reasonable grounds to believe that the following threshold criteria are met, as set out at s.31(2) of the Children Act 1989:

1. The child concerned is suffering, or is likely to suffer, significant harm; and

2. The harm, or likelihood of harm, is attributable to (a) the care given to the child, or likely to be given to them if the order were not made, not being what it would be reasonable to expect a parent to give to a child, or (b) the child's being beyond parental control.

Note: (as defined under s.31(9) of the Children Act 1989):

The terms:

It is the court's responsibility to decide whether an order is necessary to protect the young person and which sort of order is the most appropriate.

S.31(3) Children Act 1989 provides that no care order or supervision order may be made with respect to a child who has reached the age of 17 (or 16, in the case of a child who is married). The point has not been tested as to whether the court would be willing to make a care order with respect to a young person who is 16 and who alleges that he or she was the subject of a forced marriage.

The advantage of a care order over a supervision order is that it allows greater protection to be offered to the young person, as the local authority may obtain an order that there be no contact with the family and may conceal the whereabouts of the child if that is necessary to ensure adequate protection. It also gives the local authority parental responsibility for the child and the power to determine the extent to which the child's parents and others with parental responsibility may exercise their responsibility where this is necessary to safeguard or promote the child's welfare. It also lasts longer (depending on the child's age when the care order is made) - the care order will cease to have effect at 18 unless it is brought to an end earlier. A supervision order can be made for a period up to a year, although this can be extended for any period up to three years in total from the date of the first final (as opposed to interim) order.

Whilst a care order is in effect, no person may remove the child from the UK without either the written consent of the local authority and every other person who has parental responsibility for the child, or the leave of the court. This does not prevent the local authority whose care the child is in from removing the child from the UK for a period of less than one month and it also will not apply to arrangements for the child to live outside England and Wales.

It is an offence under s.49 of the Children Act 1989 to knowingly and without lawful authority or reasonable excuse take a child to whom the section applies away from the responsible person, keep such a child away from the responsible person or induce, assist or incite such a child to run away or stay away from the responsible person. Section 49 applies to children in care (i.e., those subject to a care order) as well as those subject to an emergency protection order or in police protection. The responsible person will be any person who for the time being has care of the child by virtue of the care order, the emergency protection or under s.46 of the Children Act 1989 (removal and accommodation by police) as the case may be

When a care or supervision order is not available due to the age of the young person, children's social care should be aware of the opportunities presented by a ward of court order. This is available for children up to 18 years old and while social services themselves cannot have a young person "warded" (without leave of the court under s.100 Children Act 1989), the young person or an adult friend or advocate can apply for wardship. Various injunctions can be attached to a wardship as required. Very commonly, for a young person in fear of being taken abroad, the injunctions will relate to surrendering passports to the court so that the young person may not leave the jurisdiction without the court's permission (see section 16.14 for further information on wardship).

The parents may agree to the child being accommodated by the local authority under section 20 of the Children Act 1989. A child accommodated under this provision is also "looked after" but the parent retains parental responsibility and may remove the child at any time. The accommodation provided should adequately protect the child.

If there is a relative or adult whom the young person can trust, that person could apply for a child arrangements order with respect to the young person. This can be done as a freestanding application or within the care proceedings. Again, the question is likely to arise as to whether such an action would provide adequate protection to the young person. Although the child arrangements order holder would share parental responsibility, the parents would retain their parental responsibility and would know where the young person was living. However, the child arrangements order holder could also apply for a prohibited steps or specific issue order to keep the whereabouts of the child undisclosed.

If the child is not in care, it is also possible for a local authority to obtain a prohibited steps order under s.8 Children Act 1989. Such an order could prohibit the parents from removing the young person from the country without the permission of the court. The local authority would need to seek the leave of the court before it obtained such an order. Such an order does not confer parental responsibility on the local authority.

Following a prohibited steps order, further steps should be made by children's social care, education and police to monitor the continuing wellbeing and safety of the child if they continue to live in the family home.

16.13 Inherent jurisdiction

There will be cases where a care order is not appropriate, possibly because of the age of the child. A children's social care department may ask the court to exercise its inherent jurisdiction to protect the child. Any interested party, including the young person themselves, a private individual or the Children and Family Court Advisory Support Service (Cafcass, or, in Wales, Cafcass Cymru) legal services, can apply to have a young person up to the age of 18 made a ward of court.

For the purposes of obtaining protection for a child or young person, there is little difference between wardship and the other orders made in the exercise of the inherent jurisdiction of the High Court. Both types of orders under the inherent jurisdiction are flexible and wide-ranging and an order may be sought either where there is a real risk of a child or young person being forced into marriage or after the marriage has taken place. Where there is a fear that a child or young person may be taken abroad for the purpose of a forced marriage, an order for the surrender of their passport may be made as well as an order that the child or young person may not leave the jurisdiction without the Court's permission.

16.14 Application for wardship

Once a child has left the country, there are fewer legal options open to police, social services and others to recover the young person and bring them back to the UK. One course of action is to seek the return of the young person to the jurisdiction of England and Wales by making them a ward of court, in addition to taking out a FMPO.

An application for wardship is made to the High Court Family Division, and may be made by a relative, a friend close to the child or young person, the Cafcass, or, in Wales, Cafcass Cymru, legal services department, or any interested party, including a local authority, if it has permission under s.100(3) of the Children Act 1989. The High Court has extensive experience of forced marriage cases and of dealing with them quickly. Its orders in the inherent jurisdiction and under wardship have greater influence in foreign states.

An Emergency Family Division Applications Judge is available at 10.30 am and 2 pm on all working days at the Royal Courts of Justice in the Strand, London, to hear without notice applications. Once the order is obtained, the co-operation of the authorities in the country to which the child or young person has been taken can be sought. Without such co-operation, it may be difficult to locate and return the child or young person.

16.15 Tipstaff orders

In child abduction and forced marriage cases, it may be possible to seek that an order is directed to Tipstaff, the enforcement officers for orders made in the High Court. This may be one of the following orders: Collection Order, Location Order or Passport Seizure Order. These orders provide for: a port alert against the child or vulnerable adult and respondents; removal of a child or vulnerable adult from the care of a respondent or an address where they are residing and the removal of passports, ID Cards and all travel documents in the name of a child or vulnerable adult and the respondent. The orders carry a direction to Tipstaff to arrest any person who disobeys the order, having been served with a copy of it, and a direction to Tipstaff to enter and search, using force if necessary.

In the case of children who have been declared a ward of court - i.e. cases where the court is acting in loco parentis, - Tipstaff, where directed by an order of the court, have a role in ensuring that those children are delivered to the locations specified by the court.

16.16 Non-molestation order

A non-molestation order prohibits a person from molesting or harassing another person or child. The legislative power to make an order is contained in section 42 of the Family Law Act 1996 ('the 1996 Act'). The Act does not define 'molestation' but the word is taken to cover a wide range of incidents such as violence or threats of violence, right down to pestering and general harassment. When such an order (the respondent) is made it forbids the person named in the order from 'molesting' the applicant or a 'relevant child'.

A non-molestation order may only be made against a person 'associated' with the applicant. The full list of associated persons is found in s.62(3) of the Act and includes:

An order may be made by the court without notice of the application having been given to the other person where, for example, there is a risk of significant harm to the applicant or to a child, attributable to the conduct of the other person, if the order is not made immediately (section 45 of the 1996 Act).

Even though non-molestation orders are civil court orders, breaching a non-molestation order without a reasonable excuse is a criminal offence for which perpetrators may be fined or sent to prison (section 42A of the 1996 Act). Breaching a non-molestation order may be dealt with by the civil courts as a contempt of court. But if a person is convicted of the criminal offence then they cannot also be punished for a contempt of court.

16.17 Occupation order

A person may also seek an occupation order against a person with whom they are associated under section 33 of the 1996 Act. An occupation order regulates the occupation of a particular property, such as the family home. The basis on which an order may be made depends upon each person's "right or entitlement to occupy" the property, and the legal provisions are complex. It will be necessary to seek legal advice to ascertain whether it would be possible for someone to obtain such an order. Breaching an occupation order is not a criminal offence, but may be dealt with by the civil courts as a contempt of court.

16.18 Restraining orders and injunction against harassment

The Protection from Harassment Act 1997 (the 1997 Act) makes it an offence for someone to pursue a course of conduct which amounts to harassment (section 2) or causes someone to fear that violence will be used against them (section 4).

Harassment is generally understood to involve improper oppressive and unreasonable conduct that is targeted at an individual and calculated to alarm them or cause them distress. Crucially, the individual elements of a course of conduct need not themselves be criminal; however, a series of events in combination may form a course of conduct which could amount to a criminal offence. A "course of conduct" in a case of conduct in relation to a single person must involve conduct on at least two occasions.

Where a person has been convicted or acquitted of a criminal offence under the Act, a restraining order can be made under section 5 of the Act to protect the victim or victims from any future conduct which amounts to harassment or stalking behaviour. Breach of a restraining order is a criminal offence, with a maximum penalty of five years imprisonment.

In addition to the criminal offences, section 3 of the 1997 Act provides a civil remedy. This enables a victim of harassment to seek an injunction restraining a person from pursuing a course of conduct which amounts to harassment, breach of which is a criminal offence. There is no need for a person to have been convicted of harassment in order for an injunction to be granted against them. If a court is satisfied that harassment has taken place or is anticipated, then it may grant the injunction.

17. National Support Agencies

This section gives details of national support agencies including email addresses, telephone numbers and an explanation of the services they offer.

Ann Craft Trust

Offers advice to professionals, parents, carers and family members on issues relating to the protection of vulnerable children and adults.

0115 951 5400
ann-craft-trust@nottingham.ac.uk www.anncrafttrust.org
Ashiana Network (London)

Offers refuge, advice, advocacy and counselling for BME women affected by violence against women and girls. They also provide two refuges specifically for South Asian, Turkish and Middle Eastern women between the ages of 16-35 at risk of forced marriage.

0208 539 0427

info@ashiana.org.uk
www.ashiana.org.uk
Ashiana Sheffield

Works with BME and refugee adults, children and young people fleeing domestic and sexual abuse, forced marriage, human trafficking, gang violence and 'honour'-based abuse. Provides accommodation for women with or without children who are survivors of trafficking or modern slavery. Ashiana also provide two bed spaces for women who have experienced abuse and have no recourse to public funds.

0114 255 5740
info@ashianasheffield.org www.ashianasheffield.org
BAWSO

BAWSO is an all Wales voluntary organisation which provides a specialist service to BME women and children made homeless through a threat of domestic abuse or fleeing domestic abuse in Wales. They have purpose-built refuges across Wales. They also provide emotional and practical support for BME women living in social housing. The service is accessible 24 hrs a day.

0800 731 8147

info@bawso.org.uk
www.bawso.org.uk
Birmingham and Solihull Women's Aid

Provides services for women and children who have been affected by domestic abuse, rape and sexual abuse in the Birmingham and Solihull area.

0808 800 0028
www.bswaid.org
Child Line

Child Line provides support for any child or young person with a problem.

0800 1111
www.childline.org.uk
Children and Families Across Borders

CAFAB identify and protect vulnerable children who have been separated from their families in complex situations due to conflict, trafficking, migration, family breakdown or asylum-related issues.

020 7735 8941
info@cfab.org.uk www.cfab.org.uk
Citizens Advice Bureau

The Citizens Advice Bureau offers free, confidential and impartial information and advice on a wide range of subjects including housing, employment, immigration and personal matters.

England: 0800 144 8848

Wales: 0800 702 2020
www.citizensadvice.org.uk
Domestic Abuse and Forced Marriage Helpline (Scotland)

This helpline is available to support anyone with experience of domestic abuse or forced marriage, as well as their family members, friends, colleagues and professionals who support them. They provide a confidential service and the helpline is open 24/7.

0800 027 1234
helpline@sdafmh.org.uk https://sdafmh.org.uk/
Freedom Charity

Freedom Charity aims to empower young people to feel they have the tools and confidence to support each other and to have practical ways to help their friends around the issues of forced marriage and 'dishonour'-based violence and FGM. Freedom Charity has PHSE-accredited lesson plans on forced marriage and FGM and offers assemblies for schools and training for frontline professionals.

0845 607 0133, Text "4freedom" 88802

Free app available online to download
www.freedomcharity.org.uk
Gaia Centre (London)

The Gaia Centre provides confidential and independent support for anyone experiencing gender-based violence in the London borough of Lambeth. It also provides refuge spaces.

0207 733 8724

www.refuge.org.uk - search for 'Gaia Centre'

Galop

Galop supports LGBT+ people who have experienced domestic abuse, sexual violence, hate crime, so-called conversion therapies, 'honour'-based abuse, forced marriage, and other forms of abuse.

0800 999 5428
advice@galop.org.uk www.galop.org.uk
Gatwick Travel Care

This service ensures that young people are able to leave the airport and arrive at their destination safely and without delay. Victims of forced marriage may require assistance when they arrive at Gatwick, and Travel Care can be contacted for advice. The service is available 9am to 5pm Monday to Friday, and 9am to 4pm on Saturdays, Sundays and Bank Holidays.

01293 504283
www.gatwick-airport-guide.co.uk/disabled-facilities.html
Halo Project

The Halo Project is based in the North-East of England and provides support to victims of 'honour'-based abuse and forced marriage, by providing appropriate advice and support to victims.

01642 683045
info@haloproject.org.uk www.haloproject.org.uk/
Heathrow Travel Care

This is a crisis intervention service offering support to vulnerable people at Heathrow Airport. Victims of forced marriage may require assistance upon arrival at the airport and Heathrow Travel Care can be contacted for advice and guidance.

020 8745 7495
www.heathrowtravelcare.com
Imkaan

Imkaan is dedicated to addressing violence against Black and minoritised women and girls. The organisation works on issues such as domestic abuse, forced marriage and 'honour'-based abuse. They work at local, national and international level.

020 7842 8525
info@imkaan.org.uk www.imkaan.org.uk
Include Me TOO

Include Me TOO is a national charity supporting the inclusion, rights, equality and participation of BME and marginalised communities, disabled children, young people and their families. They provide a range of services including advocacy, outreach, information and advice and support on ending all forms of abuse and harmful practices.

01902 399888
im2@includemetoo.org.uk www.includemetoo.org.uk
IKWRO - Women's Rights Organisation

Provides advice and support to Middle Eastern women and girls facing 'honour'-based abuse, domestic abuse, forced marriage and FGM.

0207 920 6460
www.ikwro.org.uk
JAN Trust

Raises awareness and prevents abuse and violence against women and girls including 'honour'-based abuse, domestic abuse, forced marriage and FGM. It provides a specialist service for BME and Muslim women.

0208 889 9433
www.jantrust.org
Karma Nirvana

Karma Nirvana is a national charity supporting victims and survivors of 'honour'-based abuse and forced marriage. They run a national helpline offering direct support and guidance to victims and professionals. They support anyone affected by 'honour'-based abuse and forced marriage, not determined by age, gender, faith or sexuality.

0800 5999 247
support@karmanirvana.org.uk www.karmanirvana.org.uk
Language line

This service can provide an interpreter on the telephone immediately in 100 different languages, 24 hours a day. This is not a free service.

0800 169 2879
www.languageline.co.uk
Live Fear Free Helpline (Wales)

The Live Fear Free Helpline, run by Welsh Women's Aid, provides free, 24-hour help and advice about violence against women and girls. Their helpline service can also offer support for those who are experiencing 'honour'-based abuse or forced marriage.

0808 80 10 800
info@livefearfreehelpline.wales https://gov.wales/live-fear-free
London Black Women's Project

Works with BME women in London who have experienced domestic abuse. They can help with information, housing and homelessness, safe space, healing and recovery through art, advice and advocacy, key working and therapeutic support.

0208 472 0528
info@lbwp.co.uk https://www.lbwp.co.uk
National Domestic Abuse Helpline (run by Refuge)

Refuge's National Domestic Abuse Helpline provides a free, confidential support service 24 hours a day to victims of domestic abuse and those who are worried about friends or loved ones.

0808 2000 247

https://www.nationaldahelpline.org.uk

Naz & Matt Foundation

The Naz & Matt Foundation supports LGBTQI+ individuals, their friends and family to work towards resolving challenges linked to sexuality or gender identity.
www.nazandmattfoundation.org
NSPCC FGM Helpline

The NSPCC provide a dedicated helpline for those concerned that a child is at risk of or has already undergone FGM.

0800 028 3550
fgm.help@nspcc.org.uk www.nspcc.org.uk
Palm Cove Society

Palm Cove Society provides supported accommodation for single homeless refugees, eligible destitute asylum seekers or migrants and unaccompanied asylum seeking children leaving care. They can also accommodate any of the aforementioned women fleeing domestic abuse.

Leeds: 0113 230 2271

Bradford: 01274 733 765
www.palmcovesociety.co.uk
Rape Crisis

Rape Crisis centres provide crisis and long-term specialised counselling, support and independent advocacy for women and girls of all ages who have experienced any form of sexual violence either recently or in the past.

0808 802 9999
rcewinfo@rapecrisis.org.uk www.rapecrisis.org.uk
Respond

Respond provides a range of services to both victims and perpetrators of sexual abuse who have learning disabilities and those who have been affected by other trauma. They also offer support and training to families, carers and professionals.

020 7383 0700
www.respond.org.uk
Reunite

Reunite specialises in international parental child abduction. It operates a 24-hour advice line providing advice and information to parents, family members and guardians who have had a child abducted or who fear abduction.

0116 255 6234 (advice line)

reunite@dircon.co.uk
www.reunite.org
Rights of Women

Rights of Women informs and educates women concerning their legal rights. Their advice lines provide free, confidential advice to women on family law and domestic and sexual violence and immigration and asylum law.
www.rightsofwomen.org.uk/
Roshni Sheffield Resource Centre for Asian Women and Girls

The Roshni centre aims to advance the welfare and education of South Asian women in Sheffield. They provide a range of activities and services including advocacy support, emotional support and counselling, training and learning opportunities.

0114 250 8898

admin@roshnisheffield.org.uk
https://www.roshnisheffield.co.uk/
Samaritans

A 24-hour helpline for any person in emotional distress.

116 123
www.samaritans.org
Savera UK

Savera UK provides confidential, emotional and practical support to survivors of 'honour'-based abuse and harmful practices. They tackle culturally-specific abuse in the UK, including forced marriage and FGM.

0800 107 0726
www.saverauk.co.uk
Sharan Project

Provides support and advice to vulnerable women, particularly of South Asian origin, who have been or are at risk of being disowned due to abuse or persecution.

0844 504 3231
info@sharan.org.uk www.sharan.org.uk
Solace

Works with women and children who have been affected by domestic and sexual violence. Provides a range of services including emergency accommodation.

0808 802 5565
advice@solacewomensaid.org www.solacewomensaid.org
Southall Black Sisters

Southall Black Sisters specialise in domestic and gender related violence locally and nationally, including forced marriage and 'honour'-based abuse. They provide specialist advice, information, casework, advocacy, counselling and self-help support services to women in several languages.

0208 571 9595
info@southallblacksisters.co.uk www.southallblacksisters.org.uk
The Vavengers

A charity working to end FGM and all other forms of Gender-Based Violence. Supporting women and girls through pop-up holistic support & wellness hubs in London. Support includes: referrals to other organisations, government and healthcare services, informational workshops on legal rights, anti-violence workshops, wellness sessions. Also provides women and girls essential items such as period products, clothing and food.
info@thevavengers.co.uk www.thevavengers.co.uk
True Honour

Specialist charity formed after breaking the silence of so-called honour killing - working with all frontline professionals, offering training and awareness on hidden abuse, particularly forced marriage and honour-based abuse. They provide support and advice to vulnerable women, meeting the needs of South Asian communities.

07480 621711
www.truehonour.org.uk
Victim Support

Victim Support offers information and support to victims of crime, whether or not they have reported the crime to the police. All help given is free and confidential. The national helpline is open 24/7.

0808 168 9111

www.victimsupport.org.uk

Welsh Refugee Council

The Welsh Refugee Council is an independent charity that empowers refugees and asylum seekers to rebuild their lives in Wales. They provide advice, information and support for asylum seekers and refugees and offer specialist services in areas such as housing, health and employment.

0808 196 7273

www.wrc.wales

Welsh Women's Aid

Welsh Women's Aid provides a free helpline service via the Live Fear Free Helpline in Wales (see above for further details).

0808 80 10 800
info@livefearfreehelpline.wales https://www.welshwomensaid.org.uk/ Police (in an emergency)
999
Police (non-emergency)
101
Forced Marriage Unit (FMU)
020 7008 0151 (+44 (0)20 7008 0151 from overseas)
NSPCC Child Protection Helpline
0800 800 5000
www.nspcc.org.uk
Citizens Advice Bureau 0344 4 111 444
www.citizensadvice.org.uk Child Line
0800 1111
www.childline.org.uk UK Visas and Immigration (Home Office)
0300 123 2241
Samaritans
116 123
www.samaritans.org Court of Protection
0300 456 4600
British High Commissions and Embassies
For the most up-to-date information on all our High Commissions and Embassies, including contact details and opening times, please visit: https://www.gov.uk/world/embassies.

Please contact the Forced Marriage Unit (FMU) if you require further details about the services available in a specific country. In some locations, consular services may be delivered remotely from a neighbouring country. The FMU's telephone number is 020 7008 0151 and their email address is fmu@fcdo.gov.uk. If you need to contact the FMU outside these hours to request emergency consular assistance which is available by phone 24/7 from anywhere in the world, please telephone the Foreign, Commonwealth, & Development Office on 020 7008 5000.

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Multi-agency statutory guidance for dealing with forced marriage and multi-agency practice guidelines: Handling cases of forced marriage (accessible version)

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Forced marriage is a crime. It is a form of abuse directed towards a child or vulnerable adult, including adults who are forced into marriage against their free will. Ignoring the needs of victims should never be an option.

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Controlling or Coercive Behaviour Statutory Guidance Framework 

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Controlling or Coercive Behaviour Statutory Guidance Framework 

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Statutory Guidance Framework

5 April 2023

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Information on controlling or coercive behaviour, to assist in identifying, evidencing, charging, prosecuting and convicting the offence.

Applies to England and Wales

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Details

This statutory guidance is issued under section 77 of the Serious Crime Act 2015 (the 2015 Act). Any persons or agency investigating offences in relation to controlling or coercive behaviour under section 76 of the 2015 Act must have regard to it.

It also provides information on:

supporting the victim and their family, and reducing the risk of harm to them

managing the perpetrator

It's primarily aimed at statutory and non-statutory bodies working with victims, perpetrators and commissioning services, including:

the police

criminal justice agencies

other agencies

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Controlling or coercive behaviour: statutory guidance framework

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Information on controlling or coercive behaviour, to assist in identifying, evidencing, charging, prosecuting and convicting the offence.

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(1) This section applies where a local authority has reasonable cause to suspect that an adult in its area (whether or not ordinarily resident there)-

(a) has needs for care and support (whether or not the authority is meeting any of those needs),

(b) is experiencing, or is at risk of, abuse or neglect, and

(c) as a result of those needs is unable to protect himself or herself against the abuse or neglect or the risk of it.

(2) The local authority must make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult's case (whether under this Part or otherwise) and, if so, what and by whom.

(3) "Abuse" includes financial abuse; and for that purpose "financial abuse" includes-

(a) having money or other property stolen,

(c) being put under pressure in relation to money or other property, and

(d) having money or other property misused.

Modifications etc. (not altering text)

Commencement Information

(1) Each local authority must establish a Safeguarding Adults Board (an "SAB") for its area.

(2) The objective of an SAB is to help and protect adults in its area in cases of the kind described in section 42(1).

(3) The way in which an SAB must seek to achieve its objective is by co-ordinating and ensuring the effectiveness of what each of its members does.

(4) An SAB may do anything which appears to it to be necessary or desirable for the purpose of achieving its objective.

(5) Schedule 2 (which includes provision about the membership, funding and other resources, strategy and annual report of an SAB) has effect.

(6) Where two or more local authorities exercise their respective duties under subsection (1) by establishing an SAB for their combined area-

(a) a reference in this section, section 44 or Schedule 2 to the authority establishing the SAB is to be read as a reference to the authorities establishing it, and

(b) a reference in this section, that section or that Schedule to the SAB's area is to be read as a reference to the combined area.

(1) An SAB must arrange for there to be a review of a case involving an adult in its area with needs for care and support (whether or not the local authority has been meeting any of those needs) if-

(a) there is reasonable cause for concern about how the SAB, members of it or other persons with relevant functions worked together to safeguard the adult, and

(b) the SAB knows or suspects that the death resulted from abuse or neglect (whether or not it knew about or suspected the abuse or neglect before the adult died).

(a) the adult is still alive, and

(b) the SAB knows or suspects that the adult has experienced serious abuse or neglect.

(4) An SAB may arrange for there to be a review of any other case involving an adult in its area with needs for care and support (whether or not the local authority has been meeting any of those needs).

(5) Each member of the SAB must co-operate in and contribute to the carrying out of a review under this section with a view to-

(a) identifying the lessons to be learnt from the adult's case, and

(b) applying those lessons to future cases.

(1) If an SAB requests a person to supply information to it, or to some other person specified in the request, the person to whom the request is made must comply with the request if-

(a) conditions 1 and 2 are met, and

(2) Condition 1 is that the request is made for the purpose of enabling or assisting the SAB to exercise its functions.

(3) Condition 2 is that the request is made to a person whose functions or activities the SAB considers to be such that the person is likely to have information relevant to the exercise of a function by the SAB.

(4) Condition 3 is that the information relates to-

(a) the person to whom the request is made,

(b) a function or activity of that person, or

(c) a person in respect of whom that person exercises a function or engages in an activity.

(5) Condition 4 is that the information-

(a) is information requested by the SAB from a person to whom information was supplied in compliance with another request under this section, and

(b) is the same as, or is derived from, information so supplied.

(6) Information may be used by the SAB, or other person to whom it is supplied under subsection (1), only for the purpose of enabling or assisting the SAB to exercise its functions.

Section 47 of the National Assistance Act 1948 (which gives a local authority power to remove a person in need of care from home) ceases to apply to persons in England.

(1) This section applies where-

(a) an adult is having needs for care and support met under section 18 or 19 in a way that involves the provision of accommodation, or is admitted to hospital (or both), and

(b) it appears to a local authority that there is a danger of loss or damage to movable property of the adult's in the authority's area because-

(i) the adult is unable (whether permanently or temporarily) to protect or deal with the property, and

(ii) no suitable arrangements have been or are being made.

(2) The local authority must take reasonable steps to prevent or mitigate the loss or damage.

(3) For the purpose of performing that duty, the local authority-

(a) may at all reasonable times and on reasonable notice enter any premises which the adult was living in immediately before being provided with accommodation or admitted to hospital, and

(b) may deal with any of the adult's movable property in any way which is reasonably necessary for preventing or mitigating loss or damage.

(4) A local authority may not exercise the power under subsection (3)(a) unless-

(a) it has obtained the consent of the adult concerned or, where the adult lacks capacity to give consent, the consent of a person authorised under the Mental Capacity Act 2005 to give it on the adult's behalf, or

(b) where the adult lacks capacity to give consent and there is no person so authorised, the local authority is satisfied that exercising the power would be in the adult's best interests.

(5) Where a local authority is proposing to exercise the power under subsection (3)(a), the officer it authorises to do so must, if required, produce valid documentation setting out the authorisation to do so.

(6) A person who, without reasonable excuse, obstructs the exercise of the power under subsection (3)(a)-

(a) commits an offence, and

(b) is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(7) A local authority may recover from an adult whatever reasonable expenses the authority incurs under this section in the adult's case.

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An Act to make provision to reform the law relating to care and support for adults and the law relating to support for carers; to make provision about safeguarding adults from abuse or neglect; to make provision about care standards; to establish and make provision about Health Education England; to establish and make provision about the Health Research Authority; to make provision about integrating care and support with health services; and for connected purposes.

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Myths and realities about Making Safeguarding Personal

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Using the Care Act guidance

This publication is currently under review

The Health and Care Act 2022 revoked Schedule 3 and amended Section 74 of the Care Act 2014 on 1 July 2022. This means that certain parts of this guidance are out of date and in the process of being updated to reflect the relevant statutory changes.

How to search the guidance

On your keyboard, press Ctrl + F on a PC or Command + F on a Mac

This will open a search box in the top right hand corner of the page. Type the word you are looking for in the search bar and press enter. The word will then be highlighted in yellow where every it appears in the guidance. Click on the enter key to move to the next word found.

How to print a copy of the guidance

On your keyboard, press Ctrl + P on a PC or Command + P on a Mac

You have an option to print the entire Care Act guidance (approximately 375 pages) or select a page range.

General responsibilities and universal services

This section includes chapters on:

1. Promoting wellbeing 2. Preventing, reducing or delaying needs 3. Information and advice 4. Market shaping and commissioning of adult care and support 5. Managing provider failure and other service interruptions

1. Promoting wellbeing

This chapter provides guidance on section 1 of the Care Act 2014 and covers:

1.1 The core purpose of adult care and support is to help people to achieve the outcomes that matter to them in their life. Throughout this guidance document, the different chapters set out how a local authority should go about performing its care and support responsibilities. Underpinning all of these individual 'care and support functions' (that is, any process, activity or broader responsibility that the local authority performs) is the need to ensure that doing so focuses on the needs and goals of the person concerned.

1.2 Local authorities must promote wellbeing when carrying out any of their care and support functions in respect of a person. This may sometimes be referred to as 'the wellbeing principle' because it is a guiding principle that puts wellbeing at the heart of care and support.

1.3 The wellbeing principle applies in all cases where a local authority is carrying out a care and support function, or making a decision, in relation to a person. For this reason it is referred to throughout this guidance. It applies equally to adults with care and support needs and their carers .

1.4 In some specific circumstances, it also applies to children, their carers and to young carers when they are subject to transition assessments (see chapter 16 on transition to adult care and support).

Definition of wellbeing

1.5 'Wellbeing' is a broad concept, and it is described as relating to the following areas in particular:

1.6 The individual aspects of wellbeing or outcomes above are those which are set out in the Care Act, and are most relevant to people with care and support needs and carers. There is no hierarchy, and all should be considered of equal importance when considering 'wellbeing' in the round.

1.7 Promoting wellbeing involves actively seeking improvements in the aspects of wellbeing set out above when carrying out a care and support function in relation to an individual at any stage of the process from the provision of information and advice to reviewing a care and support plan. Wellbeing covers an intentionally broad range of the aspects of a person's life and will encompass a wide variety of specific considerations depending on the individual.

1.8 A local authority can promote a person's wellbeing in many ways. How this happens will depend on the circumstances, including the person's needs, goals and wishes, and how these impact on their wellbeing. There is no set approach - a local authority should consider each case on its own merits, consider what the person wants to achieve, and how the action which the local authority is taking may affect the wellbeing of the individual.

1.9 The Act therefore signifies a shift from existing duties on local authorities to provide particular services, to the concept of 'meeting needs' (set out in sections 8 and 18 to 20 of the Act). This is the core legal entitlement for adults to care and support, establishing one clear and consistent set of duties and power for all people who need care and support.

1.10 The concept of meeting needs recognises that everyone's needs are different and personal to them. Local authorities must consider how to meet each person's specific needs rather than simply considering what service they will fit into. The concept of meeting needs also recognises that modern care and support can be provided in any number of ways, with new models emerging all the time, rather than the previous legislation which focuses primarily on traditional models of residential and domiciliary care.

1.11 Whenever a local authority carries out any care and support functions relating to an individual, it must act to promote wellbeing - and it should consider all of the aspects above in looking at how to meet a person's needs and support them to achieve their desired outcomes. However, in individual cases, it is likely that some aspects of wellbeing will be more relevant to the person than others. For example, for some people the ability to engage in work or education will be a more important outcome than for others, and in these cases 'promoting their wellbeing' effectively may mean taking particular consideration of this aspect. Local authorities should adopt a flexible approach that allows for a focus on which aspects of wellbeing matter most to the individual concerned.

1.12 The principle of promoting wellbeing should be embedded through the local authority care and support system, but how the local authority promotes wellbeing in practice will depend on the particular function being performed. During the assessment process, for instance, the local authority should explicitly consider the most relevant aspects of wellbeing to the individual concerned, and assess how their needs impact on them. Taking this approach will allow for the assessment to identify how care and support, or other services or resources in the local community, could help the person to achieve their outcomes. During care and support planning, when agreeing how needs are to be met, promoting the person's wellbeing may mean making decisions about particular types or locations of care (for instance, to be closer to family). To give another example, the concept of wellbeing is very important when responding to someone who self-neglects, where it will be crucial to work alongside the person, understanding how their past experiences influence current behaviour. The duty to promote wellbeing applies equally to those who, for a variety of reasons, may be difficult to engage.

1.13 The wellbeing principle applies equally to those who do not have eligible needs but come into contact with the system in some other way (for example, via an assessment that does not lead to ongoing care and support) as it does to those who go on to receive care and support, and have an ongoing relationship with the local authority. It should inform the delivery of universal services which are provided to all people in the local population, as well as being considered when meeting eligible needs. Although the wellbeing principle applies specifically when the local authority performs an activity or task, or makes a decision, in relation to a person, the principle should also be considered by the local authority when it undertakes broader, strategic functions, such as planning, which are not in relation to one individual. As such, wellbeing should be seen as the common theme around which care and support is built at local and national level.

1.14 In addition to the general principle of promoting wellbeing, there are a number of other key principles and standards which local authorities must have regard to when carrying out the same activities or functions:

1. a) The importance of beginning with the assumption that the individual is best-placed to judge the individual's wellbeing. Building on the principles of the Mental Capacity Act, the local authority should assume that the person themselves knows best their own outcomes, goals and wellbeing. Local authorities should not make assumptions as to what matters most to the person.

2. b) The individual's views, wishes, feelings and beliefs. Considering the person's views and wishes is critical to a person-centred system. Local authorities should not ignore or downplay the importance of a person's own opinions in relation to their life and their care. Where particular views, feelings or beliefs (including religious beliefs) impact on the choices that a person may wish to make about their care, these should be taken into account. This is especially important where a person has expressed views in the past, but no longer has capacity to make decisions themselves.

3. c) The importance of preventing or delaying the development of needs for care and support and the importance of reducing needs that already exist. At every interaction with a person, a local authority should consider whether or how the person's needs could be reduced or other needs could be delayed from arising. Effective interventions at the right time can stop needs from escalating, and help people maintain their independence for longer (see chapter 2 on prevention).

4. d) The need to ensure that decisions are made having regard to all the individual's circumstances (and are not based only on their age or appearance, any condition they have, or any aspect of their behaviour which might lead others to make unjustified assumptions about their wellbeing). Local authorities should not make judgments based on preconceptions about the person's circumstances, but should in every case work to understand their individual needs and goals.

5. e) The importance of the individual participating as fully as possible. In decisions about them and being provided with the information and support necessary to enable the individual to participate. Care and support should be personal, and local authorities should not make decisions from which the person is excluded.

6. f) The importance of achieving a balance between the individual's wellbeing and that of any friends or relatives who are involved in caring for the individual. People should be considered in the context of their families and support networks, not just as isolated individuals with needs. Local authorities should take into account the impact of an individual's need on those who support them, and take steps to help others access information or support.

7. g) The need to protect people from abuse and neglect. In any activity which a local authority undertakes, it should consider how to ensure that the person is and remains protected from abuse or neglect. This is not confined only to safeguarding issues, but should be a general principle applied in every case including with those who self-neglect.

8. h) The need to ensure that any restriction on the individual's rights or freedom of action that is involved in the exercise of the function is kept to the minimum necessary. For achieving the purpose for which the function is being exercised. Where the local authority has to take actions which restrict rights or freedoms, they should ensure that the course followed is the least restrictive necessary. Concerns about self-neglect do not override this principle.

1.15 All of the matters listed above must be considered in relation to every individual, when a local authority carries out a function as described in this guidance. Considering these matters should lead to an approach that looks at a person's life holistically, considering their needs in the context of their skills, ambitions, and priorities - as well as the other people in their life and how they can support the person in meeting the outcomes they want to achieve. The focus should be on supporting people to live as independently as possible for as long as possible.

1.16 As with promoting wellbeing, the factors above will vary in their relevance and application to individuals. For some people, spiritual or religious beliefs will be of great significance, and should be taken into particular account. Local authorities should consider how to apply these further principles on a case-by-case basis. This reflects the fact that every person is different and the matters of most importance to them will accordingly vary widely.

1.17 Neither these principles, nor the requirement to promote wellbeing, require the local authority to undertake any particular action. The steps a local authority should take will depend entirely on the circumstances. The principles as a whole are not intended to specify the activities which should take place. Instead, their purpose is to set common expectations for how local authorities should approach and engage with people.

Independent living

1.18 Although not mentioned specifically in the way that wellbeing is defined, the concept of 'independent living' is a core part of the wellbeing principle. Section 1 of the Care Act includes matters such as individual's control of their day-to-day life, suitability of living accommodation, contribution to society - and crucially, requires local authorities to consider each person's views, wishes, feelings and beliefs.

1.19 The wellbeing principle is intended to cover the key components of independent living, as expressed in the UN Convention on the Rights of People with Disabilities (in particular, Article 19 of the Convention). Supporting people to live as independently as possible, for as long as possible, is a guiding principle of the Care Act. The language used in the Act is intended to be clearer, and focus on the outcomes that truly matter to people, rather than using the relatively abstract term 'independent living'.

Wellbeing throughout the Care Act

1.20 Wellbeing cannot be achieved simply through crisis management; it must include a focus on delaying and preventing care and support needs, and supporting people to live as independently as possible for as long as possible. (See chapter 2 for more detail on approaches to prevention).

1.21 Promoting wellbeing does not mean simply looking at a need that corresponds to a particular service. At the heart of the reformed system will be an assessment and planning process that is a genuine conversation about people's needs for care and support and how meeting these can help them achieve the outcomes most important to them. Where someone is unable to fully participate in these conversations and has no one to help them, local authorities will arrange for an independent advocate. Chapters 6 (Assessment and eligibility), 10 (Care and support planning), and 7 (Independent advocacy) discuss this in more detail.

1.22 In order to ensure these conversations look at people holistically, local authorities and their partners must focus on joining up around an individual, making the person the starting point for planning, rather than what services are provided by what particular agency. Chapter 15 (integration and cooperation) sets this out in more detail.

1.23 In particular, the Care Act is designed to work in partnership with the Children and Families Act 2014, which applies to 0 to 2.5 year old children and young people with SEN and Disabilities. In combination, the 2 Acts enable areas to prepare children and young people for adulthood from the earliest possible stage, including their transition to adult services. This is considered in more detail at chapter 16.

1.24 Promoting wellbeing is not always about local authorities meeting needs directly. It will be just as important for them to put in place a system where people have the information they need to take control of their care and support and choose the options that are right for them. People will have an opportunity to request their local authority support in the form of a direct payment that they can then use to buy their own care and support using this information. Chapters 3 (Information and advice) and 12 (Direct payments) explain this in more detail.

1.25 Control also means the ability to move from one area to another or from children's services to the adult system without fear of suddenly losing care and support. The Care Act ensures that people will be able to move to a different area without suddenly losing their care and support and provides clarity about who will be responsible for care and support in different situations. It also includes measures to help young people move to the adult care and support system, ensuring that no one finds themselves suddenly without care on turning 18. Chapters 20 (Continuity of care), 19 (Ordinary residence) and 16 (Transition to adult care and support) set this out in more detail.

1.26 It is not possible to promote wellbeing without establishing a basic foundation where people are safe and their care and support is on a secure footing. The Care Act puts in place a new framework for adult safeguarding and includes measures to guard against provider failure to ensure this is managed without disruption to services. Chapters 14 (Safeguarding), and 5 (Managing provider failure) set this out in more detail.

The role of the Principal Social Worker in care and support

1.27 The purpose of this section of the guidance is to further clarify arrangements to have in place a designated principal social worker in adult care and support. Local authorities should make arrangements to have a qualified and registered social work professional practice lead in place to:

lead and oversee excellent social work practice

support and develop arrangements for excellent practice

lead the development of excellent social workers

support effective social work supervision and decision making

oversee quality assurance and improvement of social work practice

advise the director of adult social services (DASS) and/or wider council in complex or controversial cases and on developing case or other law relating to social work practice

function at the strategic level of the Professional Capabilities Framework

The local authority role in supporting principal social workers

1.28 All local authorities should ensure principal social workers are given the credibility, authority and capacity to provide effective leadership and challenge, both at managerial and practitioner level and are given sufficient time to carry out their role. The principal social worker should also be visible across the organisation, from elected members and senior management, through to frontline social workers, people who use services and carers. Local authorities should therefore ensure that the role is located where it can have the most impact and profile.

1.29 Whatever arrangements are agreed locally, the principal social worker should maintain close contact with the DASS and frontline practitioners and engage in some direct practice. This can take several different forms, including direct casework, co-working, undertaking practice development sessions, mentoring.

1.30 The integration of health and care and support will increasingly require social workers to lead, both in their teams and across professional boundaries, particularly in the context of safeguarding, mental health and mental capacity. Organisational models of social work have traditionally focused on managerial, as opposed to professional leadership - through their direct link to practice, principal social workers can 'bridge the gap' between professional and managerial responsibility, to influence the delivery and development of social work practice.

Principal social workers and safeguarding

1.31 Chapter 14 of this statutory guidance endorses the: 'Making Safeguarding Personal' approach. This represents a fundamental shift in social work practice in relation to safeguarding, with a focus on the person not the process. As the professional lead for social work, principal social workers should have a broad knowledge base on safeguarding and Making Safeguarding Personal and be confident in its application in their own and others' work. Local authorities should, therefore, ensure that principal social workers lead on ensuring the quality and consistency of social work practice in fulfilling its safeguarding responsibilities. In particular they should have extensive knowledge of the legal and social work response options to specific cases and in general.

2. Preventing, reducing or delaying needs

This chapter provides guidance on section 2 of the Care Act 2014.

This chapter covers:

2.1 It is critical to the vision in the Care Act that the care and support system works to actively promote wellbeing and independence, and does not just wait to respond when people reach a crisis point. To meet the challenges of the future, it will be vital that the care and support system intervenes early to support individuals, helps people retain or regain their skills and confidence, and prevents need or delays deterioration wherever possible.

2.2 There are many ways in which a local authority can achieve the aims of promoting wellbeing and independence and reducing dependency. This guidance sets out how local authorities should go about fulfilling their responsibilities, both individually and in partnership with other local organisations, communities, and people themselves.

2.3 The local authority's responsibilities for prevention apply to all adults, including:

2.4 The term 'prevention' or 'preventative' measures can cover many different types of support, services, facilities or other resources. There is no single definition for what constitutes preventative activity and this can range from wide-scale whole-population measures aimed at promoting health, to more targeted, individual interventions aimed at improving skills or functioning for one person or a particular group or lessening the impact of caring on a carer's health and wellbeing. In considering how to give effect to their responsibilities, local authorities should consider the range of options available, and how those different approaches could support the needs of their local communities.

2.5 'Prevention' is often broken down into 3 general approaches - primary, secondary and tertiary prevention - which are described in more detail below. The use of such terms is aimed to illustrate what type of services, facilities and resources could be considered, arranged and provided as part of a prevention service, as well as to whom and when such services could be provided or arranged. However, services can cut across any or all of these 3 general approaches and as such the examples provided under each approach are not to be seen as limited to that particular approach. Prevention should be seen as an ongoing consideration and not a single activity or intervention.

2.6 These are aimed at individuals who have no current particular health or care and support needs. These are services, facilities or resources provided or arranged that may help an individual avoid developing needs for care and support, or help a carer avoid developing support needs by maintaining independence and good health and promoting wellbeing. They are generally universal (for example, available to all) services, which may include, but are not limited to interventions and advice that:

The LinkAge programme aims to promote and enhance the lives of older people (55+ years old) through a range of activities, from walking groups to coffee mornings, through a number of older people-led 'hubs' across the city. The main aim is to bring those people that feel socially isolated and lonely into their local communities. In an evaluation of a new hub there was significant improvement on a friendship scale with scores moving from people feeling isolated or with a low level of social support at the beginning of the hub to very or highly socially connected at follow up.

Eileen (85) said:

I look forward to Fridays each week and enjoy the social aspect of the club too."

Lyn said:

if it wasn't for LinkAge I don't quite know what would have happened. It's made life bearable, well more than bearable, it's made it life."

Reduce: secondary prevention/early intervention

2.7 These are more targeted interventions aimed at individuals who have an increased risk of developing needs, where the provision of services, resources or facilities may help slow down or reduce any further deterioration or prevent other needs from developing. Some early support can help stop a person's life tipping into crisis, for example helping someone with a learning disability with moderate needs manage their money, or a few hours support to help a family carer who is caring for their son or daughter with a learning disability and behaviour that challenges at home.

2.8 Early intervention could also include a fall prevention clinic, adaptions to housing to improve accessibility or provide greater assistance, handyman services, short term provision of wheelchairs or telecare services. In order to identify those individuals most likely to benefit from such targeted services, local authorities may undertake screening or case-finding, for instance to identify individuals at risk of developing specific health conditions or experiencing certain events (such as strokes, or falls), or those that have needs for care and support which are not currently met by the local authority. Targeted interventions should also include approaches to identifying carers, including those who are taking on new caring responsibilities. Carers can also benefit from support to help them develop the knowledge and skills to care effectively and look after their own health and wellbeing.

Delay: tertiary prevention/formal intervention

2.9 These are interventions aimed at minimising the effect of disability or deterioration for people with established or complex health conditions, (including progressive conditions, such as dementia), supporting people to regain skills and manage or reduce need where possible. Tertiary prevention could include, for example the rehabilitation of people who are severely sight impaired (see also chapter 22 sight registers). Local authorities must provide or arrange services, resources or facilities that maximise independence for those already with such needs, for example, interventions such as the provision of formal care such as meeting a person's needs in their own home; rehabilitation/reablement services, for example, community equipment services and adaptations; and the use of joint case-management for people with complex needs.

2.10 Tertiary prevention services could also include helping improve the lives of carers by enabling them to continue to have a life of their own alongside caring, for example through respite care, peer support groups like dementia cafés, or emotional support or stress management classes which can provide essential opportunities to share learning and coping tips with others. This can help develop mechanisms to cope with stress associated with caring and help carers develop an awareness of their own physical and mental health needs.

2.11 Prevention is not a one off activity. For example, a change in the circumstances of an adult and/or carer may result in a change to the type of prevention activity that would be of benefit to them (see para 2.32). Prevention can sometimes be seen as something that happens primarily at the time of (or very soon after) a diagnosis or assessment or when there has been a subsequent change in the person's condition. Prevention services are, however, something that should always be considered. For example, at the end of life in relation to carers, prevention services could include the provision of pre-bereavement support.

2.12 There is a tendency for the terms 'reablement', 'rehabilitation' and 'intermediate care' to be used interchangeably. The National Audit of Intermediate Care categorises 4 types of intermediate care:

2.13 The term 'rehabilitation' is sometimes used to describe a particular type of service designed to help a person regain or re-learn some capabilities where these capabilities have been lost due to illness or disease. Rehabilitation services can include provisions that help people attain independence and remain or return to their home and participate in their community, for example independent living skills and mobility training for people with visual impairment.

2.14 'Intermediate care' services are provided to people, usually older people, after they have left hospital or when they are at risk of being sent to hospital. Intermediate care is a programme of care provided for a limited period of time to assist a person to maintain or regain the ability to live independently - as such they provide a link between places such as hospitals and people's homes, and between different areas of the health and care and support system - community services, hospitals, GPs and care and support.

2.15 To prevent needs emerging across health and care, integrated services should draw on a mixture of qualified health, care and support staff, working collaboratively to deliver prevention. This could involve, for instance, reaching beyond traditional health or care interventions to help people develop or regain the skills of independent living and active involvement in their local community.

Carers and prevention

2.16 Carers play a significant role in preventing the needs for care and support for the people they care for, which is why it is important that local authorities consider preventing carers from developing needs for care and support themselves. There may be specific interventions for carers that prevent, reduce or delay the need for carers' support. These interventions may differ from those for people without caring responsibilities. Examples of services, facilities or resources that could contribute to preventing, delaying or reducing the needs of carers may include but is not limited to those which help carers to:

2.17 As with the people they care for, the duty to prevent carers from developing needs for support is distinct from the duty to meet their eligible needs (see chapter 6). While a person's eligible needs may be met through universal preventative services, this will be an individual response following a needs or carers assessment. Local authorities cannot fulfil their universal prevention duty in relation to carers simply by meeting eligible needs, and nor would universal preventative services always be an appropriate way of for meeting carers' eligible needs.

The focus of prevention

2.18 Local authorities must have regard to promoting wellbeing and the principles set out in chapter 1. Local authorities should look at an individual's life holistically. This will mean considering any care and support needs in the context of the person's skills, ambitions and priorities. This should include consideration of the role a person's family or friends can play in helping the person to meet their goals. This is not creating or adding to their caring role but including them in an approach supporting the person to live as independently as possible for as long as possible. In regard to carers, the local authority should consider how they can be supported to look after their own health and wellbeing and to have a life of their own alongside their caring responsibilities.

2.19 As highlighted in the case study, where people live alone a person may not always have the support from family or friends because they may not live close by. For this group of people prevention needs to be considered through other means, such as the provision of community services and activities that would help support people to maintain an independent life.

Case Study

An older man lives alone with some support from his daughter who works full-time. He needs occasional personal care to remain living independently with dignity, and it is likely that these needs will increase. He has lost contact with family and friends following his wife's death and rarely goes out without support from his daughter who is restricted to taking him out at weekends because of work commitments.

An assessment would consider all of his needs, including those currently being met by his daughter, along with the outcomes he wishes to achieve. A separate carer's assessment offered to his daughter (or a combined assessment if both father and daughter agreed) would establish the daughter's willingness and ability to care and continue to care and how best to promote her own wellbeing, for example by having regard to the outcomes she wishes to achieve. This joint assessment would look at issues such as the possible impact on the daughter of supporting her father while in full-time employment as well as the father's isolation, ability to connect with others or be an active citizen.

Community groups, voluntary organisations, and buddying services could support the father to reduce the social isolation that he may be feeling and maximise opportunities to look after his own health and wellbeing and participate in local community activities. This, in turn could lessen the impact of caring on his daughter and enable her to continue to support her father effectively alongside paid employment. Such support can be identified/suggested alongside other, perhaps more formal services to meet personal care needs, and can be an effective way of promoting wellbeing. In this example, the aspects of wellbeing relating to social wellbeing and family relationships might be promoted.

2.20 In developing and delivering preventative approaches to care and support, local authorities should ensure that individuals are not seen as passive recipients of support services, but are able to design care and support based around achievement of their goals. Local authorities should actively promote participation in providing interventions that are co-produced with individuals, families, friends, carers and the community. 'Co-production' is when an individual influences the support and services received, or when groups of people get together to influence the way that services are designed, commissioned and delivered. Such interventions can contribute to developing individual resilience and help promote self-reliance and independence, as well as ensuring that services reflect what the people who use them want.

Case Study

Derby City Council used co-production to develop clear and easy to use customer information to support their new customer journey for self-directed support. New information that has been produced includes an assessment form, support planning tools for people using services, customer leaflets and a staff handbook. A small project team held discussions and workshops to identify information that needed improving to be clearer and suggestions for improvement, for example, a new assessment form. Staff working in adult social care assessment teams had training on how to make best use of the new suite of information.

The inclusive approach taken to re-designing the information took longer than an internally managed process, but has resulted in better information, informed people using services and bringing their own perspective and experience. The co-production approach led to the development of key principles which can be used in other areas of communication. The approach is being continued.

2.21 Through the assessment process, an individual will have direct contact with a local authority. A good starting point for a discussion that helps develop resilience and promotes independence would be to ask: 'what does a good life look like for you and your family and how can we work together to achieve it?' Giving people choice and control over the support they may need and access to the right information enables people to stay as well as possible, maintain independence and caring roles for longer.

2.22 Social workers, occupational therapists, other professionals, service providers and commissioners who are effective at preventing, reducing, or delaying needs for care and support are likely to have a holistic picture of the individuals and families receiving support. This will include consideration of a person's strengths and their informal support networks as well as their needs and the risks they face. This approach recognises the value in the resources of voluntary and community groups and the other resources of the local area.

Developing a local approach to preventative support

2.23 A local authority must provide or arrange for services, facilities or resources which would prevent, delay or reduce individuals' needs for care and support, or the needs for support of carers. Local authorities should develop a clear, local approach to prevention which sets out how they plan to fulfill this responsibility, taking into account the different types and focus of preventative support as described above. Developing a local approach to preventative support is a responsibility wider than adult care and support alone, and should include the involvement, by way of example, of those responsible for public health, leisure, transport, and housing services which are relevant to the provision of care and support.

2.24 Whilst local authorities may choose to provide some types of preventative support themselves, others may be more effectively provided in partnership with other local partners (for example, rehabilitation or falls clinics provided jointly with the local NHS), and further types may be best provided by other organisations (for example, specialist housing providers or some carers' services). A local authority's commissioning strategy for prevention should consider the different commissioning routes available, and the benefits presented by each. This could include connecting to other key areas of local preventative activity outside care, including housing, planning and public health.

2.25 In developing a local approach to prevention, the local authority must take steps to identify and understand both the current and future demand for preventative support, and the supply in terms of services, facilities and other resources available.

2.26 Local authorities must consider the importance of identifying the services, facilities and resources that are already available in their area, which could support people to prevent, reduce or delay needs, and which could form part of the overall local approach to preventative activity. Understanding the breadth of available local resources will help the local authority to consider what gaps may remain, and what further steps it should itself take to promote the market or to put in place its own services.

2.27 Where the local authority does not provide such types of preventative support itself, it should have mechanisms in place for identifying existing and new services, maintaining contact with providers over time, and helping people to access them. Local approaches to prevention should be built on the resources of the local community, including local support networks and facilities provided by other partners and voluntary organisations.

2.28 Local authorities must promote diversity and quality in provision of care and support services, and ensure that a person has a variety of providers to choose from (see chapter 4). Considering the services, facilities and resources which contribute towards preventing or delaying the development of needs for care and support is a core element of fulfilling this responsibility. A local authority should engage local providers of care and support in all aspects of delivery and encourage providers to innovate and respond flexibly to develop interventions that contribute to preventing needs for care and support.

2.29 Local authorities should consider the number of people in its area with existing needs for care and support, as well as those at risk of developing needs in the future, and what can be done to prevent, delay or reduce those needs now and in the future. In doing so, a local authority should draw on existing analyses such as the Joint Strategic Needs Assessment, and work with other local partners such as the NHS and voluntary sector to develop a broader, shared understanding of current and future needs, and support integrated approaches to prevention.

2.30 In particular, local authorities must consider how to identify 'unmet need' - for example, those people with needs which are not currently being met, whether by the local authority or anyone else. Understanding unmet need will be crucial to developing a longer-term approach to prevention that reflects the true needs of the local population. This assessment should also be shared with local partners, such as through the health and wellbeing board, to contribute to wider intelligence for local strategies. Preventative services, facilities or resources are often most effective when brought about through partnerships between different parts of the local authority and between other agencies and the community such as those people who are likely to use and benefit from these services.

2.31 Local authorities should consider how they can work with different partners to identify unmet needs for different groups and coordinate shared approaches to preventing or reducing such needs, for example working with the NHS to identify carers, and working with independent providers including housing providers and the voluntary sector, who can provide local insight into changing or emerging needs beyond eligibility for publically-funded care.

Case Study: Midland Heart's reablement service

At 82, Beryl was diagnosed with stomach cancer and admitted to hospital. As a result of a major operation, she now has a permanent colostomy bag. After only a month Beryl was successfully discharged from hospital to her own home with a reablement package from Leicester City Council and support from the housing association, Midland Heart, to help her regain her independence.

If Beryl had not received this support, she would have been discharged to a more costly care home. The reablement service ensured that Beryl's home was suitably adapted for her return, which allowed a speedy discharge and avoided the need for institutional care. The support service has assisted her attendance at medical appointments with her GP and monitored the impact of her medication.

Working with other partners to focus on prevention

2.32 Developing and delivering local approaches to prevention, the local authority should consider how to align or integrate its approach with that of other local partners. Preventing needs will often be most effective when action is undertaken at a local level, with different organisations working together to understand how the actions of each may impact on the other.

2.33 Within the local authority, prevention of care and support needs is closely aligned to other local authority responsibilities in relation to public health, children's services, and housing, for example. Across the local landscape, the role of other bodies including the local NHS (for example: GPs, dentists, pharmacists, ophthalmologists), welfare and benefits advisers (for example at Jobcentre Plus), the police, fire service, prisons in respect of those persons detained or released with care and support needs, service providers and others will also be important in developing a comprehensive approach.

2.34 Local authorities must ensure the integration of care and support provision, including prevention with health and health-related services, which include housing (see chapter 15). This responsibility includes in particular a focus on integrating with partners to prevent, reduce or delay needs for care and support.

2.35 A local authority must cooperate with each of its relevant partners and the partners must cooperate with the local authority (see chapter 15 on cooperation and details of specific relevant partners), for example, in relation to the provision of preventative services and the identification of carers, a local authority must cooperate with NHS bodies.

2.36 A local authority must also set up arrangements between its relevant partners and individual departments in relation to its care and support functions, which includes prevention. Relevant partners and individual departments include, but are not limited to, housing departments where, for example, housing services or officers may be well placed to identify people with dementia and their carers, and provide housing related support and/or in partnership with others, home from hospital services or 'step up step down' provision.

Identifying those who may benefit from preventative support

2.37 Local authorities should put in place arrangements to identify and target those individuals who may benefit from particular types of preventative support. Helping people to access such types of support when they need it is likely to have a significant impact on their longer-term health and wellbeing, as well as potentially reducing or delaying the need for ongoing care and support from the local authority.

2.38 In developing such approaches, local authorities should consider the different opportunities for coming into contact with those people who may benefit from preventative support, including where the first contact may be with another professional outside the local authority, for example, GPs, pharmacists or welfare and benefit advisers. There are a number of interactions and access points that could bring a person into contact with the local authority or a partner organisation and act as a trigger point for the local authority to consider whether the provision of a preventative service, or some other step is appropriate. These might include, for example:

2.39 Many people with low level care and support needs will approach the voluntary sector for advice in the first instance. Local authorities and the voluntary sector should work together on how it can share this information to gain a fuller picture of local need as possible. Authorities should bring data from these different sources together to stratify who in the community may need care and support in the future and what types of needs they are likely to have, and use this information to target their preventative services effectively.

2.40 Prevention should be a consistent focus for local authorities in undertaking their care and support functions. However, there may be key points in a person's life or in the care and support process where a preventative intervention may be particularly appropriate or of benefit to the person. Approaches to identifying those people who may benefit from preventative support should consider how to locate people in such circumstances, for example:

2.41 A local authority must establish and maintain a service for providing people with information and advice relating to care and support (see chapter 3). In addition to any more targeted approaches to communicating with individuals who may benefit from preventative support, this service should include information and advice about preventative services, facilities or resources, so that anyone can find out about the types of support available locally that may meet their individual needs and circumstances, and how to access them.

Helping people access preventative support

2.42 A variety of different kinds of service, facilities or resources can be preventative and can help individuals live well and maintain their independence or caring roles for longer.

2.43 Local authorities should be innovative and develop an approach to prevention that meets the needs of their local population. A preventative approach requires a broad range of interventions, as one size will not fit all.

2.44 Where a local authority has put in place mechanisms for identifying people who may benefit from a type of preventative support, it should take steps to ensure that the person concerned understands the need for the particular measure, and is provided with further information and advice as necessary.

2.45 Contact with a person who is identified as being able to benefit from preventative support may lead to the local authority becoming aware that the person appears to have needs for either or both care and support and support in a role as a carer. This appearance of need may trigger the requirement to carry out a needs assessment (in the case of an adult with needs for care and support), or a carer's assessment (see paragraphs 2.48 to 2.54 below). However, where a local authority is not required to carry out such an assessment under the Care Act, it should nonetheless take steps to establish whether the person identified will benefit from the type of preventative support proposed.

2.46 Where a person is provided with any type of service, or support to access any facility or resource as a preventative measure, the local authority should also provide the person with information in relation to the services offered or measure undertaken. The local authority is not required to provide a care and support plan or a support plan where it only takes steps under section 2 of the Care Act; however, it should consider which aspects of a plan should be provided in these circumstances, and should provide such information as is necessary to enable the person to understand:

2.47 The person concerned must agree to the provision of any service or other step proposed by the local authority. Where the person refuses, but continues to appear to have needs for care and support (or for support, in the case of a carer), then the local authority must proceed to offer the individual an assessment.

Assessment of adults' and carers' needs

2.48 In assessing whether an adult has any care and support needs or a carer has any needs for support, the local authority must consider whether the person concerned would benefit from the preventative services, facilities or resources provided by the local authority or which might otherwise be available in the community. This is regardless of whether, in fact, the adult or carer is assessed as having any care and support needs or support needs. As part of the assessment process, the local authority considers the capacity of the person to manage their needs or achieve the outcomes which matter to them, and allows for access to preventative support before a decision is made on whether the person has eligible needs (see chapter 6 on assessment).

2.49 As part of this process, the local authority should also take into account the person's own capabilities, and the potential for improving their skills, as well as the role of any support from family, friends or others that could help them to achieve what they wish for from day-to-day life. This should not assume that others are willing or able to take up caring roles. Where it appears to the local authority that a carer may have needs for support (whether currently or in the future), a carer's assessment must always be offered.

2.50 Children should not undertake inappropriate or excessive caring roles that may have an impact on their development. A young carer becomes vulnerable when their caring role risks impacting upon their emotional or physical wellbeing and their prospects in education and life. A local authority may become aware that a child is carrying out a caring role through an assessment or informed through family members or a school. A local authority should consider how supporting the adult with needs for care and support can prevent the young carer from under taking excessive or inappropriate care and support responsibilities. Where a young carer is identified, the local authority must undertake a young carer's assessment under part 3 of the Children Act 1989.

2.51 Considering the support from family, friends or others is important in taking a holistic approach to see the person in the context of their support networks and understanding how their needs may be prevented, reduced or delayed by others within the community, rather than by more formal services (also see chapter 6, paras. 6.65 to 6.71, about the whole family approach to assessment).

2.52 If a person is provided with care and support or support as a carer by the local authority, the authority must provide them with information and advice about what can be done to prevent, delay, or reduce their needs as part of their care and support plan or support plan. This should also include consideration of the person's strengths and the support from other members of the family, friends or the community (see chapter 10 on care and support planning).

2.53 Regardless of whether or not a person is ultimately assessed as having either any needs at all or any needs which are to be met by the local authority, the authority must in any case provide information and advice in an accessible form, about what can be done to prevent, delay, or reduce development of their needs. This is to ensure that all people are provided with targeted, personalised information and advice that can support them to take steps to prevent or reduce their needs, connect more effectively with their local community, and delay the onset of greater needs to maximise their independence and quality of life. Where a person has some needs that are eligible, and also has some other needs that are not deemed to be eligible, the local authority must provide information and advice on services facilities or resources that would contribute to preventing, reducing or delaying the needs which are not eligible, and this should be aligned and be consistent with the care and support plan for the person with care needs, or support plan for the carer.

2.54 It is important that people receive information in a timely manner about the services or interventions that can help or contribute to preventing an escalation in needs for care and support. Supporting people's access to the right information at the right time is a key element of a local authority's responsibilities for prevention.

Charging for preventative support

2.55 Preventative services, like other forms of care and support, are not always provided free, and charging for some services is vital to ensure affordability. The Care and Support (Preventing Needs for Care and Support) Regulations 2014 continue to allow local authorities to make a charge for the provision of certain preventative services, facilities or resources. The regulations also provide that some other specified services must be provided free of charge.

2.56 Prevention services facilities or resources may not involve local authorities directly providing or commissioning a service. Some effective forms of prevention result from partnerships with other public services, voluntary and community organisations and other providers. In developing these partnerships local authorities should consider what obstacles there may be which might prevent people on low incomes from benefitting from the activities and take reasonable steps to avoid this.

2.57 Where a local authority chooses to charge for a particular service, it should consider how to balance the affordability and viability of the activity with the likely impact that charging may have on uptake. In some cases, charging may be necessary in order to make a preventative service viable or keep a service running.

2.58 When charging for any type of preventative support, local authorities should take reasonable steps to ensure that any charge is affordable for the person concerned. This does not need to follow the method of the financial assessment used for mainstream charging purposes; and the use of such a process is likely to be disproportionate.

2.59 However, local authorities should consider adopting a more proportionate or 'light-touch' approach which ensures that charges are only paid by those who can afford to do so. In any event, a local authority must not charge more than it costs to provide or arrange for the service, facility or resource.

2.60 The regulations require that intermediate care and reablement must be provided free of charge for up to 6 weeks, as must aids and minor adaptations (for example: adaptations up to the value of £1,000) (see also 8.14).

2.61 Where local authorities provide intermediate care or reablement to those who require it, this must be provided free of charge for a period of up to 6 weeks. This is for all adults, irrespective of whether they have eligible needs for ongoing care and support. Although such types of support will usually be provided as a preventative measure under section 2 of the Act, they may also be provided as part of a package of care and support to meet eligible needs. In these cases, regulations also provide that intermediate care or reablement cannot be charged for in the first 6 weeks, to ensure consistency.

2.62 Whilst they are both time-limited interventions, neither intermediate care nor reablement should have a strict time limit, since the period of time for which the support is provided should depend on the needs and outcomes of the individual. In some cases, for instance a period of rehabilitation for a visually impaired person (a specific form of reablement) , may be expected to last longer than 6 weeks. Whilst the local authority does have the power to charge for this where it is provided beyond 6 weeks, local authorities should consider continuing to provide it free of charge beyond 6 weeks in view of the clear preventative benefits to the individual and, in many cases, the reduced risk of hospital admissions.

2.63 Local authorities should consider the potential impact and consequences of ending the provision of preventative services. Poorly considered exit strategies can negate the positive outcomes of preventative services, facilities or resources, and ongoing low-level care and support can have significant impact on preventing, reducing and delaying need.

Case Study

Mr A is a 91 year old man who lives alone with his dog in his house. He is usually independent, is a passionate cook and enjoys socialising. He drives a car. Whilst out walking his dog he suffered a stroke, he fell, causing a fractured neck of femur. He was admitted to hospital and underwent surgery for a hip replacement which meant he had to follow hip precautions for 6 weeks.

Mr A was discharged, independently mobile using a frame, independent transferring using equipment and stair climbing with supervision. He was discharged home with 4 calls per day from BEST plus (Bradford Enablement Support Team). Joint sessions between the PTs and OTs and BEST plus were completed to work on the following:

The above goals were achieved and new goals were set in consultation with Mr A:

After 6 weeks of continued BEST plus input in Mr A's home, he was able to achieve all of his goals and all Social Services input was withdrawn. Aspects of Mr A's wellbeing have been promoted including physical wellbeing, social wellbeing, and control over day-to-day life.

3. Information and advice

This chapter provides guidance on section 4 of the Care Act 2014 and covers:

3.1 Information and advice is fundamental to enabling people, carers and families to take control of, and make well-informed choices about, their care and support and how they fund it. Not only does information and advice help to promote people's wellbeing by increasing their ability to exercise choice and control, it is also a vital component of preventing or delaying people's need for care and support.

3.2 Local authorities must: 'establish and maintain a service for providing people in its area with information and advice relating to care and support for adults and support for carers'.

3.3 The local authority has an active and critical role in the provision of information and advice and must take an active role. To fulfil its duty under section 4 of the Act, a local authority is likely to need to go further than providing information and advice directly (though direct provision will be important) by working to ensure the coherence, sufficiency, availability and accessibility of information and advice relating to care and support across the local authority area. Importantly, this duty to establish and maintain an information and advice service relates to the whole population of the local authority area, not just those with care and support needs or in some other way already known to the system.

3.4 It is important to be clear that the duty to establish and maintain an information and advice service is distinct from the duty to meet eligible needs (see chapter 6): this is true for both people with care and support needs and their carers. While a person's eligible needs may be met by the provision of information and advice this will be an individual response following a needs or carers assessment. Local authorities cannot fulfil their universal information and advice duty simply by meeting eligible needs, and nor would information and advice always be an appropriate way of meeting eligible needs.

3.5 The local authority must ensure that information and advice services established cover more than just basic information about care and support and cover the wide range of care and support related areas set out in para. 3.22. The service should also address, prevention of care and support needs, finances, health, housing, employment, what to do in cases of abuse or neglect of an adult and other areas where required. In fulfilling this duty, local authorities should consider the people they are communicating with on a case by case basis, and seek to actively encourage them towards the types of information and/or advice that may be particularly relevant to them.

3.6 Local authorities must also have regard to identifying people that contact them who may benefit from financial information and advice independent of the local authority and actively facilitate those people to access to it (see paragraph 3.50). Separately to the duty to establish and maintain an information and advice service, local authorities must provide independent advocacy to facilitate the person's involvement in the care and support assessment, planning and review processes where an individual would experience substantial difficulty in understanding, retaining or using information given, or in communicating their views, wishes or feelings and where there is nobody else appropriate (see chapter 7).

3.7 The availability and provision of information and advice, whether more general information about the way the system operates in the local authority area or more personalised information on a person's specific needs, are essential building blocks to all of the reforms and many of the specific duties the Act introduces. This chapter of guidance should therefore be read in conjunction with guidance throughout this document, including:

promoting individual wellbeing (chapter 1)

prevention of needs for care and support (chapter 2)

integration of care and support with health and housing related services (chapter 15)

promoting diverse and high quality services (chapter 4)

assessment and eligibility (chapter 6)

personal budgets, personal care and support planning and direct payments (chapters 10 to 13)

deferred payment agreements (chapter 9)

continuity of care (chapter 20)

safeguarding (chapter 14)

transition to adult care and support (chapter 16)

independent advocacy (chapter 7)

Terminology

3.8 In this section of guidance, the term 'information' means the communication of knowledge and facts regarding care and support. 'Advice' means helping a person to identify choices and/or providing an opinion or recommendation regarding a course of action in relation to care and support.

3.9 This section of guidance also uses the term 'advocacy' to mean supporting a person to understand information, express their needs and wishes, secure their rights, represent their interests and obtain the care and support they need.

3.10 This guidance talks about 'financial information and advice' which includes a broad spectrum of services whose purpose is to help people plan, prepare and pay for their care costs. In places it talks of 'independent' financial information or advice which in this document means services independent of the local authority. This guidance also refers to 'regulated' financial advice which means advice from an organisation regulated by the Financial Conduct Authority ( FCA) which can extend to individual recommendations about specific financial products. Local authorities should ensure that people are able to access all of these types of financial information and advice which help people plan and pay for their care.

The duty to establish and maintain a service

3.11 Local authorities must establish and maintain a service for providing people in their areas with information and advice relating to care and support for adults and support for carers. In doing so local authorities should take account of the services currently in place and actions already taken and plans with partner organisations resulting from Joint Strategic Needs Assessments and Joint Health and Wellbeing Strategies. The information and advice service must cover the needs of all its population, not just those who are in receipt of local authority funded care or support. For example, people may often require information and advice before they need to access care or support services, to consider what actions they may take now to prevent or delay any need for care, or how they might plan to meet the cost of future care needs.

3.12 People need information and advice across many areas to support them to make informed choices about their care and support (see para. 3.23).

3.13 In establishing and maintaining an information and advice service, local authorities should ensure that they engage widely with people with care and support needs, carers, the wider public and local providers of information and advice and other types of care and support, to identify what is available and exactly what is needed locally, and how and where information and advice should best be provided.

3.14 It is important to recognise that while local authorities must establish and maintain a service, the duty does not require they provide all elements of this service. Rather, under this duty local authorities are expected to understand, co-ordinate and make effective use of other high quality statutory, voluntary and/or private sector information and advice resources available to people within their areas. This may also include provision of a service or parts of a service in conjunction with one or more local authorities, health services, children's services, or reuse of information from other local or national sources. When a local need for additional information and advice services is identified, local authorities should recognise the relevance of independent and impartial advice and should consider carefully whether services should be provided by the local authority directly or by another agency, including independent providers.

The audiences for the information and advice service

3.15 Local authorities are responsible for ensuring that all adults including carers in their area with a need for information and advice about care and support are able to access it. This is a very broad group, extending much further than people who have an immediate need for care or support. It will only be achieved through working in partnership with the wider public and local advice and information providers.

3.16 People (carers included) who are likely to need information and advice include, but are not restricted to:

people wanting to plan for their future care and support needs

people who may develop care and support needs, or whose current care and support needs may become greater. Under the duty of prevention in Section 2 of the Act, local authorities are expected to take action to prevent, delay and/or reduce the care and support needs for these people (see chapter 2 on prevention)

people who have not presented to local authorities for assessment but are likely to be in need of care and support. Local authorities are expected to take steps to identify such people and encourage them to come forward for an assessment of their needs (see chapter 2 on prevention)

people who become known to the local authority (through referral, including self-referral), at first contact where an assessment of needs is being considered (see chapter 6 on assessments)

people who are assessed by local authorities as currently being in need of care and support. Advice and information must be offered to these people irrespective of whether they have been assessed as having eligible needs which the local authority must meet (see chapter 6 on assessments)

people whose eligible needs for care and support the local authority is currently meeting (whether the local authority is paying for some, all or none of the costs of meeting those needs) (see chapter 10 on care and support planning)

people whose care and support or support plans are being reviewed (see chapter 13 on reviews of care and support plans)

family members and carers of adults with care and support needs, (or those who are likely to develop care and support needs). Under Sections 2 of the Act, local authorities are expected to have regard to the importance of identifying carers and take action to reduce their needs for support (see chapter 6 on assessments)

adults who are subject to adult safeguarding concerns (see chapter 14 on safeguarding)

people who may benefit from financial information and advice on matters concerning care and support. Local authorities must have regard to the importance of identifying these people, to help them understand the financial costs of their care and support and access independent financial information and advice including from regulated financial advisers (see para. 3.49)

care and support staff who have contact with and provide information and advice as part of their jobs

3.17 In providing information and advice, local authorities must recognise and respond to the specific requirements that carers have for both general and personal information and advice. A carer's need for information and advice may be separate and distinct from information and advice for the person they are caring for. These distinct needs may be covered together, in a similar manner to the local authority combining an assessment of a person needing care and support with a carer's assessment (where both the individuals concerned agree) (see chapter 6 on assessments), but may be more appropriately addressed separately. This may include information and advice on:

Access to and quality of information and advice

3.18 The local authority must ensure that there is an accessible information and advice service that meets the needs of its population. Information and advice must be open to everyone who would benefit from it. People access information and advice from a wide variety of sources. The authority should take account of information standards published by the Information Standards Board for Health and Social Care under the provisions of the Health and Social Care Act 2012.

3.19 Local authorities should ensure that information supplied is clear. Information and advice should only be judged as clear if it is understood and able to be acted upon by the individual receiving it. Local authorities will need to take steps to evaluate and ensure that information and advice is understood and able to be acted upon.

3.20 Information and advice provided within the service should be accurate, up-to-date and consistent with other sources of information and advice. Staff providing information and advice within a local authority and other frontline staff should be aware of accessibility issues and be appropriately trained.

3.21 All reasonable efforts should be taken to ensure that information and advice provided meets the individual's requirements, is comprehensive and is given at an early stage. Local authorities must seek to ensure that all relevant information is available to people for them to make the best informed decision in their particular circumstances, and omission or the withholding of information would be at odds with the duty as set out in the Act.

3.22 There are some circumstances where it is particularly important for information and advice to be impartially provided. Local authorities should consider when this might most effectively be provided by an independent source rather than by the local authority itself. This is particularly likely to be the case when people need advice about how and whether to question or challenge the decisions of the local authority or other statutory body.

What should be provided - information and advice content

3.23 In discharging this duty, local authorities must ensure that information and advice is provided on:

3.24 The breadth of the circumstances under which information and advice must be provided, and the overall duty to promote individual wellbeing, means that local authorities must ensure that the subject matters covered by their information and advice available to people in their areas go much further than a narrow definition of care and support and cover all those subject matters listed in paragraph 3.23 above. Depending on local circumstances, the service should also include, but not be limited to, information and advice on:

available housing and housing-related support options for those with care and support needs

effective treatment and support for health conditions, including Continuing Health Care arrangements

availability and quality of health services

availability of services that may help people remain independent for longer such as home improvement agencies, handyman or maintenance services

availability of befriending services and other services to prevent social isolation

availability of intermediate care entitlements such as aids and adaptations

eligibility and applying for disability benefits and other types of benefits

availability of employment support for disabled adults

children's social care services and transition

availability of carers' services and benefits

sources of independent information, advice and advocacy

the Court of Protection, power of attorney and becoming a deputy

raise awareness of the need to plan for future care costs

practical help with planning to meet future or current care costs

accessible ways and support to help people understand the different types of abuse and its prevention

When information should be provided

3.25 Local authorities have a number of direct opportunities to provide - or signpost to - advice and information when people in need of care and support come into contact with them. These include:

at first point of contact with the local authority

as part of a needs or carer's assessment, including joint continuing healthcare assessments

during a period of reablement

around and following financial assessment

when considering a financial commitment such as a deferred payment agreement or top-up agreement

during or following an adult safeguarding enquiry

when considering take up of a personal budget and/or direct payment

during the care and support planning process

during the review of a person's care and support plan

when a person may be considering a move to another local authority area

at points in transition, for example when people needing care or carers under 18 become adults and the systems for support may change

3.26 Local authorities, working with their partners must use the wider opportunities to provide targeted information and advice at key points in people's contact with the care and support, health and other local services. These include, but are not limited to, known 'trigger points' during a person's life such as:

contact with other local authority services

bereavement

hospital entry and/or discharge

diagnosis of health conditions - such as dementia, stroke or an acquired impairment for example

consideration or review of continuing healthcare arrangements

take-up of power of attorney

applications to Court of Protection

application for, or review of, disability benefits such as attendance allowance

personal independence payments, and for carers allowance

access to work interviews

contact with local support groups, charities, or user-led organisations including carers

groups and disabled person's organisations

contact with or use of private care and support services, including homes care

change or loss of housing

contact with the criminal justice system

admission to or release from prison

'Guidance Guarantee' in the Pensions Act 2014

retirement

Accessibility of information and advice

3.27 The local authority should ensure that products and materials (in all formats) are as accessible as possible for all potential users. Websites should meet specific standards such as the Web Content Accessibility Guidelines and guidance set out in the Government Digital Service's ( GDS) service manual, printed products should be produced to appropriate guidelines with important materials available in easy read, and telephone services should also be available to those with hearing impairments. Local authorities should particularly be aware of the needs of individuals with complex but relatively rare conditions, such as deaf-blindness.

3.28 As required under the Equality Act 2010, reasonable adjustments should be made to ensure that disabled people have equal access to information and advice services. Reasonable adjustments could include the provision of information in accessible formats or with communication support.

3.29 Advice and information content should, where possible, be provided in the manner preferred by the person and will therefore often need to be available in a number of different formats. The duty in the Care Act will not be met through the use of digital channels alone, and information and advice channels are likely to include all of the following:

3.30 Some groups in need of information and advice about care and support may have particular requirements. Local authorities must ensure that their information and advice service has due regard to the needs of these people. These include, but are not limited to:

3.31 Some people, including some people with dementia, may benefit from an independent person to help them to access or avail themselves of necessary information and advice. Any such need for help to facilitate access to this universal information and advice needs to be considered in planning for delivery of the service, although the duty to make arrangements for an individual to have an independent advocate available to them in certain circumstances only applies in relation to an individual's involvement in the assessment, planning and review processes. From the point of first contact with or referral to the authority consideration of the duty to provide for independent advocacy to support involvement in assessment, planning and reviews should be undertaken (see chapter 7 on independent advocacy).

Proportionality of information and advice

3.32 The type, extent and timing of information and advice provided should be appropriate to the needs of the person. More complex issues may require more intensive and more personalised information and advice, helping people to understand the choices available to them, while general enquiries may require a less intensive approach. It is also important that the right level of information and advice is provided at the right time, recognising that a person's need for information or advice may vary depending on the circumstance. For example, providing a person with too much information, more than they can take in, perhaps at a time of crisis, can be counter-productive.

3.33 There are clear messages from past public consultations and from research that people 'don't know what they need to know' in relation to their care and support. This can prevent them asking the right questions and can mask the articulation and identification of needs that they have, for which they could benefit from information and advice. All contact for information and advice should take account of this and be able to respond with an assessment of needs when appropriate (see chapter 6).

3.34 Local authorities should help ensure that information and advice is proportionate to the needs of those for whom it is provided. This could include enabling access to the support of registered social work advice for those providing information and advice to people contacting the local authority. This can help ensure that the potential for complexity is recognised early on and the person receives help to access non-statutory services and/or initial statutory sector support proportionate to their needs.

3.35 In providing an information and advice service, local authorities must be providing more than just leaflets and web-based materials. The focus should be on enabling people to access what they need through a tailored range of services that assists people to navigate all points and aspects of their journey through care and support. In doing this, local authorities should think about how they are reaching out and joining up with other providers of information and advice to ensure the coherence of the overall 'offer' (see chapter 15 on integration and cooperation).

Financial information and advice

3.36 Financial information and advice is fundamental to enabling people to make well-informed choices about how they pay for their care. It is integral to a person's consideration of how best to meet care and support needs, immediately or in the future. People with good and impartial financial information and advice have a better understanding of how their available resources can be used more flexibly to fund a wider range of care options.

3.37 Financial information and advice is considered in a separate section due to the sometimes specialist and complex nature of what can be needed. This section should be read in the context of the overarching chapter and all requirements set out in this chapter, for example on accessibility and proportionality, must also be applied to financial information and advice. As set out at the start of the chapter, when this section refers to 'independent financial information and advice' it means services independent of the local authority. Where it refers to 'regulated' financial advice it means advice from an organisation regulated by the FCA which can extend to individual recommendations about specific financial products.

3.38 The service that local authorities are required to establish and maintain must include financial information and advice on matters relevant to care and support. It should provide some of this information directly to people in its community. However, where it would not be appropriate for a local authority to provide it directly, the local authority must ensure that people are helped to understand how to access independent financial advice.

3.39 Care decisions are often made quickly and at a time of crisis, and they can often involve family and friends in the process. The local authority must have regard to the importance of identifying those who may benefit from financial advice or information as early as possible. This should be complemented by broader awareness raising about how care and support is funded. Local authorities may also include how care and support costs interact with retirement decisions. Actions taken by a local authority to do this should include:

3.40 When making financial plans about how to pay for care and support, a person needs to have confidence in what to do in the present, a view ahead to the future and a plan for what to do if circumstances change. This long-term outlook means that people will want to access financial information and advice at different points in their journey to enable them to make sustainable plans to pay for their care. The local authority should provide a service that covers this breadth and that facilitates access to the full spectrum of financial information and advice - from basic budgeting tips to regulated advice - to ensure that people within its area who would benefit can access it. They should also be aware and provide for the fact that some people will be less able to protect themselves from theft, fraud and financial exploitations (see chapter 14 on safeguarding).

3.41 The local authority service should include the following aspects of financial information and advice:

3.42 Before providing financial information or advice directly to a person the local authority should establish whether the person has a deputy of the Court of Protection or a person with Lasting Power of Attorney acting on their behalf.

Understanding care charges

3.43 The local authority must provide information to help people understand what they may have to pay, when and why and how it relates to people's individual circumstances. This must include the charging framework for care and support, how contributions are calculated (from both assets and income) and the means tested support available; top-ups (see chapter 8 on charging); and how care and support choices may affect costs. In the case of top-ups, the local authority should ensure that someone is willing and able to pay for them - this information will be fundamental in helping with this. The local authority should use the knowledge it has of the local care market - types of care and local providers of information and advice - to complement and develop the overarching narrative on how care funding works at the national level. This would include both domiciliary and residential care.

Ways to pay

3.44 The local authority must provide people with information on the availability of different ways to pay for care including through income and assets (for example, pension or housing wealth), a deferred payment agreement (see chapter 9 on deferred payment agreements), a financial product or a combination of these things. Local authorities should seek to give information that would be particularly pertinent to a person's individual circumstances and facilitate access to an independent source of information or advice where relevant. This will be of particular relevance where a person will be meeting the total cost of care and support themselves or may be considering taking out a deferred payment agreement (see chapter 9 on deferred payments) or purchasing a financial product.

Money management

3.45 Different people will need different levels of support from the local authority and other providers of information and advice depending on their financial capability, their care needs and the amount they are expected to contribute. At the lower end of the spectrum, people may just need some basic information and support to help them rebalance their finances in light of their changing circumstances. Topics may include welfare benefits, advice on good money management, help with basic budgeting and possibly on debt management. The local authority may be able to provide some of this information itself, for example on welfare benefits, but where it cannot, it should help people access it.

Making informed financial decisions

3.46 The local authority must support people to make informed, affordable and sustainable financial decisions about their care throughout all stages of their life. In many situations the role of the local authority will be to understand the circumstances of the person, understand their preferences and help them to access the tailored information and advice that they need to make well-informed decisions. Where a person lacks capacity, the authority must establish whether a person has a deputy of the Court of Protection or a person with Lasting Power of Attorney acting on their behalf.

3.47 The local authority must offer to consider a person's specific circumstances and provide them with information about the methods of paying for their care and support that may be available to them. The local authority may consider the timing and context of any retirement decisions a person might be making and how this interacts with paying for their care and support. They should advise people of the ways to pay that others in similar circumstances would usually consider and the range of information and advice they should be considering to help make their decision.

3.48 To help people access the information and advice they need, the local authority should have a clear view of the information and advice services available locally and what they provide. The local authority should take a role in joining up information and advice organisations locally so they can work collaboratively. The local authority should help information and advice providers and people to understand the role of each information and advice provider so people can access the right provider at the right time and not be sent round in circles. Local authorities should provide and publicise links and information on access to wider sources of information and advice, including those available nationally.

3.49 Local authorities should ensure that staff, including front line staff, are able to support people to access the information and advice they need to make good financial decisions. Staff should have the knowledge to direct people to the financial information and advice they need, explaining the differences and potential benefits from seeking regulated or non-regulated financial advice.

Facilitating access to independent financial information and advice

3.50 A key role for local authorities, when it would be inappropriate to provide it itself, is to facilitate access to financial information and advice which is impartial and independent of a local authority. This should include both generic free and fee-based advice as well as services providing regulated forms of financial advice. 'Facilitating access' may include making people aware of specific sources of information and advice that are available and giving information about how to use them. Local authorities should make people aware which independent services may charge for the information and advice they provide. Local authorities should be able to actively describe the general benefits of independent information and advice and, based on what is known of an individual's circumstance, be able to explain the reasons why it may be beneficial for a person to take independent financial advice.

3.51 Where a person may be considering taking regulated financial advice local authorities are not required or encouraged to make a direct referral to one individual independent financial adviser, but they should actively help and direct a person to a choice of advisers regulated by the Financial Conduct Authority with the appropriate qualifications and accreditation. The local authority should ensure that they do this on a transparent basis.

3.52 Further practice guidance is also available to support local authorities to facilitate access to independent financial information and advice.

Information and advice on adult safeguarding

3.53 The government expects local authorities and others to help people with care and support needs, who may be at risk of abuse or neglect as a result of those needs, keep safe. But this must not mean preventing them making their own choices and having control over their lives. Everyone in the community should understand the importance of safeguarding and help keep people safe (see chapter 14 on safeguarding).

3.54 The local authority must provide information and advice on how to raise concerns about the safety or wellbeing of an adult who has needs for care and support and should support public knowledge and awareness of different types of abuse and neglect, how to keep yourself physically, sexually, financially and emotionally safe, and how to support people to keep safe. The information and advice provided must also cover who to tell when there are concerns about abuse or neglect and what will happen when such concerns are raised, including information on how the local Safeguarding Adults Board works.

Complaints

3.55 Current complaints provision in relation to local authority social services is set out in regulations. The provisions of the regulations mean that anyone who is dissatisfied with a decision made by the local authority would be able to make a complaint about that decision and have that complaint handled by the local authority. The local authority must make its own arrangements for dealing with complaints in accordance with the 2009 regulations. As an essential part of how the whole system operates, under the 2009 regulations the local authority's arrangements must ensure that those who make complaints receive, as far as reasonably practicable, assistance to enable them to understand the complaints procedure or advice on where to obtain such assistance.

Reviewing and developing a plan or strategy

3.56 Local differences and different starting points will mean that each local authority will need to develop and implement a plan regarding their information and advice services that matches their circumstances and meets the needs of its population. The information and advice service should be aligned with wider local authority strategies such as market shaping and commissioning, and with joint area strategies with health. The development of such plans should have regard to some common principles, including:

involving people who use services and carers, interested organisations and service providers in determining what is needed and how it is provided

being available at the right time for people who need it, in a range of accessible formats and through a range of channels

meeting the needs of all groups

being clear, comprehensive and impartial

be consistent, accurate and up-to-date

meeting quality standards, such as the Advice Quality Standard

being based on a detailed analysis of the needs of the local population served by the local authority

being commissioned in tandem with other relevant support and independent advocacy services

avoiding unnecessary duplication

directing people to sources of further information

be used to inform future planning

ensuring appropriate quality assurance and review, including customer feedback to make sure that the service learns from experience and continuously improves

3.57 The plan should build on local and national best practice and make best use of national resources. These national resources include guidance on principles for local information and advice strategies, case studies and practice examples.

3.58 The local authority must exercise its functions under the Care Act, including the duty to provide an information and advice service, with a view to integrating care and support provision with health and health-related issues (including housing). It must also co-operate more generally with each of its relevant partners taking account of their respective functions (see chapter 15 on integration, cooperation and partnerships). The Local Government and Public Involvement in Health Act 2007 (as amended by the Health and Social Care Act 2012), provides that local authorities are under a duty to work with their local CCGs, and other partners through the Health and Wellbeing Board to undertake Joint Strategic Needs Assessments for their areas and to develop Joint Health and Wellbeing Strategies. Statutory Guidance published in March 2013 makes clear that the Joint Strategic Needs Assessment and Joint Health and Wellbeing Strategies must be published, and have specific regard to 'what health and social care information the community needs, including how they access it and what support they may need to understand it'.

3.59 The development and implementation of a wider plan or strategy on the provision of information and advice on care and support should be led by the local authority, acting as the coordinator and where appropriate the commissioners of information and advice services.

3.60 The development of information and advice plans and their implementation should be an ongoing and dynamic process, involving all relevant stakeholders, rather than a one off occurrence. The plan and the resulting service should adapt to changing needs and as a result of feedback and learning on what works best. The plan should be reviewed at agreed intervals. As a minimum, the process of developing a local plan should include:

engagement with people, carers and family members, to understand what is working and not working for them, their preferences and how their information advice and advocacy needs can best be met

adopting a 'co-production' approach to their plan, involving user groups and people themselves, other appropriate statutory, commercial and voluntary sector service providers, and make public the plan once finalised

mapping to understand the range of information, advice and advocacy services, including independent financial advice and different providers available

coordination with other statutory bodies with an interest in care and support, including local CCGs, Health and Wellbeing Boards, local Healthwatch and neighbouring local authorities

building into the plan opportunities to record, measure and assess the impact of information and advice services rather than simply service outputs

3.61 In deciding the types of information and advice services to be provided, each local authority will need to analyse and understand the specific needs of its population. Some of the factors and circumstances that local authorities should consider in doing this will often be identified in Joint Strategic Needs Assessments. These factors may include, but are not limited to:

3.62 Local authorities should review and publish information about the effectiveness of the information and advice service locally, including customer satisfaction and may wish to build these into the local Joint Health and Wellbeing Strategies.

3.63 These actions will support local authorities to meet their duties for understanding and promoting the efficient and effective market of services for meeting care and support needs in its area (see chapter 4).

3.64 As part of their plans, local authorities should consider the persons and/or places most likely to come into contact with people in need of information and advice at these and other critical points in the person's care and support journey. This may be another statutory party, such as a GP or other NHS professional, other professionals, such as a solicitor or funeral director, care and support and housing providers, or a local group, user-led or charitable organisation, rather than the local authority itself. Local authorities should consider whether independent sources of information and advice may in some circumstances be more trusted - and therefore more effective - than the local authority itself (see chapter 15, para. 15.71) .

3.65 In addition or instead of direct provision, local authorities should consider whether it is in a person's best interests that they be signposted, directed or referred to independent sources of information and advice. In particular, people should be signposted to appropriate independent information and advice when they are entering into a legal agreement with a local authority or other third party, such as a deferred payment agreement or committing to a top-up, or they wish to question, challenge or appeal a decision of the local authority or other statutory body.

3.66 People often come into contact with care and support services and need to make important decisions at a time of crisis. A local authority plan should therefore allow for the urgent provision of information and advice when necessary. Local authorities should work with health organisations and other partners to provide targeted information and advice to people in these critical situations and where people have long-term health conditions such as dementia (see paragraph 3.26).

3.67 In their information and advice planning, local authorities will need to weigh up the likely demand and effectiveness of these different channels of communication, some of which will incur substantially higher costs than others. A plan that relies disproportionately on provision of information and advice through the authority's website, or third party websites, is unlikely to meet the authority's duty under the Act to establish and maintain a service to provide information and advice on care and support.

3.68 Local authorities will need to consider in their information and advice planning the appropriate interface and balance between local and national sources of information and advice. Where appropriate, local authorities should signpost or refer people to national sources of information and advice where these are recognised as the most useful source. Examples might include:

the NHS Choices website which contains a mix of textual content, videos, and tools such as the online quality profiles of registered care providers in local areas. Local authorities are encouraged to add local sources of information and advice to the online profiles and make sure their local registered care providers add information on the services and support they offer.

NHS Choices website. Health A to Z, detailed information on specific health conditions and how/where to access health services

Carers Direct - national telephone helpline: Telephone 0300 123 1053

Money Advice Service

the Care Quality Commission

the Local Government Ombudsman

consumer websites providing people with information and advice, including on managing their finances well, for example Which? Elderly Care

national charities and/or advice services supporting people with disabilities or older people and those with expert knowledge of specific conditions (for example, deaf blind). For example, Age UK ; Independent Age; Alzheimer's Society and Sense, and their national telephone advice/help lines

national charities and advice services for carers, for example Carers UK or Age UK

national resources related to housing, accommodation and housing related support, for example FirstStop Advice or Foundations

3.69 Some national providers, for example the Money Advice Service and NHS Choices, may also offer free access to tools, resources and information content that can be integrated into local authority websites or delivered in paper formats. Local authorities are encouraged to explore how they can make the most of cost-effective partnership opportunities with national providers. Referral or signposting to national sources should only occur where this is deemed to be in the best interests of the person and their circumstances and should not take the place of local services necessary for local authorities to discharge their duty under the Act. Local authorities will need to find the appropriate balance between local and national provision to cost-effectively meet their local need.

3.70 Information and advice, whether provided directly by a local authority or by third parties as part of the information and advice service that the local authority establishes and maintains, should be of a good standard and, where appropriate, delivered by trained or suitably qualified individuals.

4. Market shaping and commissioning of adult care and support

This chapter provides guidance on section 5 of the Care Act 2014 and covers:

the principles which should underpin market-shaping and commissioning activity:

focusing on outcomes and wellbeing

promoting quality services, including through workforce development and remuneration and ensuring appropriately resourced care and support

supporting sustainability

ensuring choice

co-production with partners

the steps which local authorities should take to develop and implement local approaches to market-shaping and commissioning:

designing strategies that meet local needs

engaging with providers and local communities

understanding the market

facilitating the development of the market

integrating their approach with local partners

securing supply in the market and assuring its quality through contracting

4.1 High-quality, personalised care and support can only be achieved where there is a vibrant, responsive market of service providers. The role of the local authority is critical to achieving this, both through the actions it takes to commission services directly to meet needs and the broader understanding of and interactions it undertakes with, the wider market, for the benefit of all local people and communities.

4.2 The Care Act places new duties on local authorities to promote the efficient and effective operation of the market for adult care and support as a whole. This can be considered a duty to facilitate the market, in the sense of using a wide range of approaches to encourage and shape it, so that it meets the needs of all people in their area who need care and support, whether arranged or funded by the state, by the individual themselves, or in other ways. The ambition is for local authorities to influence and drive the pace of change for their whole market, leading to a sustainable and diverse range of care and support providers, continuously improving quality and choice, and delivering better, innovative and cost-effective outcomes that promote the wellbeing of people who need care and support.

4.3 The market for care and support services is part of a wider system in which much of the need for care and support is met by people's own efforts, by their families, friends or other carers, and by community networks. Local authorities have a vital role in ensuring that universal services are available to the whole population and where necessary, tailored to meet the needs of those with additional support requirements (for example housing and leisure services). Market shaping and commissioning should aim to promote a market for care and support that should be seen as broadening, supplementing and supporting all these vital sources of care and support.

4.4 Local authorities should review the way they commission services, as this is a prime way to achieve effective market shaping and directly affects services for those whose needs are met by the local authority, including where funded wholly or partly by the state.

4.5 At a time of increasing pressure on public funds, changing patterns of needs, and increasing aspirations of citizens, together with momentum for integrated services, joint commissioning, and choice for individuals, it is suggested that fundamental changes to the way care and support services are arranged may be needed, driven through a transformation of the way services are led, considered and arranged. Commissioning and market shaping are key levers for local authorities in designing and facilitating a healthy market of quality services.

Definitions

4.6 Market shaping means the local authority collaborating closely with other relevant partners, including people with care and support needs, carers and families, to encourage and facilitate the whole market in its area for care, support and related services. This includes services arranged and paid for by the state through the authority itself, those services paid by the state through direct payments, and those services arranged and paid for by individuals from whatever sources (sometimes called 'self-funders'), and services paid for by a combination of these sources. Market shaping activity should stimulate a diverse range of appropriate high quality services (both in terms of the types of services and the types of provider organisation), and ensure the market as a whole remains vibrant and sustainable.

4.7 The core activities of market shaping are to engage with stakeholders to develop understanding of supply and demand and articulate likely trends that reflect people's evolving needs and aspirations, and based on evidence, to signal to the market the types of services needed now and in the future to meet them, encourage innovation, investment and continuous improvement. It also includes working to ensure that those who purchase their own services are empowered to be effective consumers, for example by helping people who want to take direct payments make informed decisions about employing personal assistants. A local authority's own commissioning practices are likely to have a significant influence on the market to achieve the desired outcomes, but other interventions may be needed, for example, incentivising innovation by user-led or third sector providers, possibly through grant funding.

4.8 Commissioning is the local authority's cyclical activity to assess the needs of its local population for care and support services, determining what element of this needs to be arranged by the authority, then designing, delivering, monitoring and evaluating those services to ensure appropriate outcomes. From the 1990s onwards care services have been increasingly procured from the independent sector (for example, not directly commissioned from and provided by an authority itself) and covered all services that the authority arranged for people receiving state funding. Since 2007 when personalisation became a mainstream policy, commissioning has also covered activity to ensure that sufficient and appropriate services are available to meet the needs of growing numbers of people with personal budgets and direct payments. This has changed the commissioning role, as purchasing decisions have been increasingly devolved to individuals and families and direct procurement using block contracts has reduced. Commissioning has come to be shaped more by the outcomes commissioners and individuals identify, rather than volumes of activity expected and commissioners have sought to facilitate flexible arrangements with providers for other forms of service to support choice and control, such as Individual Service Funds ( ISFs).

4.9 Procurement is the specific functions carried out by the local authority to buy or acquire the services which the local authority has a duty to arrange to meet people's needs, to agreed quality standards so as to provide effective value for money to the public purse and deliver its commissioning strategy.

4.10 Contracting is the means by which that process is made legally binding. Contract management is the process that then ensures that the services continue to be delivered to the agreed quality standards. Commissioning encompasses procurement but includes the wider set of strategic activities.

4.11 This statutory guidance describes, at a high level, the themes and issues that local authorities should have regard to when carrying out duties to shape their local markets and commission services. Market shaping, commissioning, procurement and contracting are inter-related activities and the themes of this guidance will apply to each to a greater or lesser extent depending on the specific activity.

Principles of market-shaping and commissioning

Focusing on outcomes

4.12 Local authorities must ensure that the promotion of the wellbeing of individuals who need care and support, and the wellbeing of carers, and the outcomes they require, are central to all care and support functions in relation to individuals, emphasising the importance of enabling people to stay independent for as long as possible.

4.13 Local authorities will need to understand the outcomes which matter most to people in their area, and demonstrate that these outcomes are at the heart of their local strategies and approaches.

4.14 Local authorities should consider the Adult Social Care Outcomes Framework ( ASCOF), in addition to any locally-collected information on outcomes and experiences (for example, from local consumer research), when framing outcomes for their locality and groups of people with care and support needs. Local authorities should have regard to guidance from the Think Local Act Personal ( TLAP) partnership when framing outcomes for individuals, groups and their local population, in particular the Making It Real 'I' statements, which set out what good personalised care and support should look like from the perspective of people with care and support needs, carers and family members. Outcomes should be considered both in terms of outcomes for individuals and outcomes for groups of people and populations. Local authorities should consider the emerging revised Care Quality Commission standards for quality and any emerging national frameworks for defining outcomes. Local authorities may find the Chartered Institute of Housing's Service Quality Tool for housing-related services useful. This builds on and updates the Quality Assessment Framework ( QAF).

4.15 Local authorities should consider analysing and presenting local needs for services in terms of outcomes required. Local authorities should ensure that achieving better outcomes is central to its commissioning strategy and practices, and should be able to demonstrate that they are moving to contracting in a way that has an outcome basis at its heart. Local authorities should consider emerging best practice on outcomes-based commissioning.

4.16 Outcomes-based services mean developing service arrangements that are defined on the basis of an agreed set of outcomes either for an individual or a group of people. Moving to an outcomes-based approach therefore means changing the way services are bought: from units of provision to meet a specified need (for example, hours of care provided) to what is required to ensure specified measurable outcomes for people are met. The approach should emphasise prevention, enablement, ways of reducing loneliness and social isolation and promotion of independence as ways of achieving and exceeding desired outcomes, as well as choice in how people's needs are met. Moving to an outcomes-based approach will need to recognise that some outcomes are challenging to assess and local authorities may wish to consider involving service providers when considering how service evaluations can be interpreted. Outcomes should be used as a principal measure for quality assurance of services.

4.17 In encouraging outcomes-based services, consideration should be given to how services are paid for. Local authorities should consider incorporating elements of 'payments-by-outcomes' mechanisms, where practical, to emphasise and embed this commissioning approach which is based on specifying the outcomes to be achieved, rather than the service outputs to be delivered. Whilst payments-by-outcomes may be theoretically the most appropriate approach for outcomes-based services, it is recognised that proxies for outcomes may be required to make the approach practical. For example, an outcome an authority may wish to measure might be someone's personal outcome 'I want to maintain a nutritious and balanced diet', but a proxy measure that is observable, attributable and capable of being described, may be the person receiving help with meal preparation at agreed and specified times. Care logs documenting punctual assistance in meal preparation, in conjunction with positive feedback from the person receiving care about support received might be used as part of the basis of payment. It is also recognised that whilst these mechanisms are more commonplace in other types of commissioning, they are in their infancy for adult social care.

4.18 The design of any mechanism should, however, be introduced in cooperation with stakeholders and partners to ensure it is sustainable and ensure that innovation, and individual choice and control are not undermined. Any move to payments by outcomes should be achieved such that smaller, specialist, voluntary sector and community-based providers are not excluded from markets or disadvantaged, because for example, they did not have appropriate IT systems.

4.19 Local authorities should keep under review emerging ideas and best practice about outcomes based commissioning and payments by outcomes. For example:

Local authorities should have regard to the evolving guidance ' Commissioning for Better Outcomes' that was co-produced by the Department of Health, ADASS, LGA together with provider representatives and people with lived experience of care and support. This guidance is intended to support peer review and self-assessment of local authority commissioning, and represents a practical approach that underpins the themes of this statutory guidance.

4.20 Section 2 of the Care Act outlines local authorities' role in preventing, reducing or delaying the need for care and support. This includes how the authority facilitates and commissions services and how it works with other local organisations to build community capital and make the most of the skills and resources already available in the area. [footnote 10] Local authorities should consider working not just with traditional public sector partners like health, but also with a range of other partners to engage with communities to understand how to prevent problems from arising. [footnote 11]

4.21 Local authorities must facilitate markets that offer a diverse range of high-quality and appropriate services. In doing so, they must have regard to ensuring the continuous improvement of those services and encouraging a workforce which effectively underpins the market through:

The quality of services provided and the workforce providing them can have a significant effect on the wellbeing of people receiving care and support, and that of carers, and it is important to establish agreed understandable and clear criteria for quality and to ensure they are met.

4.22 When considering the quality of services, local authorities should be mindful of the capacity, capability, timeliness, continuity, reliability and flexibility of services delivered to support wellbeing, where appropriate, using the definitions that underpin the CQC's fundamental standards of care as a minimum, and having regard to the ASCOF framework of population outcomes. High quality services should enable people who need care and support, and carers, to meet appropriate personal outcome measures, for example, a domiciliary care service which provides care 2 days a week so that a carer who normally provides care can go to work, is not a quality service if it is not available on the specified days, or the care workers do not arrive in time to allow the carer to get to work on time.

4.23 Local authorities should also consider other relevant national standards including those that are aspirational, for example, any developed by the National Institute of Health and Care Excellence ( NICE). [footnote 12]

4.24 Local authorities should encourage a wide range of service provision to ensure that people have a choice of appropriate services; appropriateness is a fundamental part of quality. For example, a working age person should be able to choose care and support tailored for their situation, and not be faced with only a choice of facilities designed for older people, as this is unlikely to be appropriate to their situation, regardless of how high quality the facilities may be in their own contexts. Appropriate services will meet people's needs and reasonable preferences.

4.25 When arranging services themselves, local authorities must ensure their commissioning practices and the services delivered on their behalf comply with the requirements of the Equality Act 2010, and do not discriminate against people with protected characteristics; this should include monitoring delivery against the requirements of that Act. When shaping markets for services, local authorities should work to ensure compliance with this Act for services provided in their area that are not arranged and/or paid for by them. Local authorities should consider care and support services for their appropriateness for people from different communities, cultures and beliefs.

4.26 Local authorities should encourage services that respond to the fluctuations and changes in people's care and support needs, for example someone with fluctuating mobility or visual impairment. Local authorities should support the transition of services throughout the stages of people with care and support needs' lives to ensure the services provided remain appropriate. This is particularly important, for example, for young people with care and support needs and young carers transitioning to adulthood.

Example: Ensuring provision of appropriate services

Young people move from children's to adult care and support or providing support for situations where young carers become adults

For instance, many young people with learning disabilities leave full-time education at around this age and require new forms of care and support to live independently thereafter. Ensuring that services are made available to meet those needs is better for the quality of life of the young person in question. This could include things such as employment support, training, developing friendships or advice on housing options. It is equally important to think about ways of supporting carers at this time: some parent carers need extra support to juggle caring and paid work after their child leaves full time education. Loss of paid employment can have a significant impact on the carer's wellbeing and self-esteem as well as a significant impact on the family's financial circumstances. Similar issues can affect young carers. Taking a whole family approach to care and support planning that sets out a 'five-day offer' or appropriate supported living options for a young person, and support for a carer to manage an increased caring role (that allows them to stay in paid work if they wish to do so) can help families manage the transition and save money by avoiding unwanted out-of-county placements.

4.27 Local authorities should commission services having regard to the cost-effectiveness and value for money that the services offer for public funds. The Local Government Association Adult Social Care Efficiency Programme has advice on these issues and may be helpful.

4.28 People working in the care sector play a central role in providing high quality services. Local authorities must consider how to help foster, enhance and appropriately incentivise this vital workforce to underpin effective, high quality services. [footnote 13] [footnote 14]

4.29 Local authorities should consider, in particular, how to encourage training and development for the care and support workforce, including for the management of care services, through, for example, national standards recommended by Skills for Care:

And have regard to funding available through grants to support the training of care workers in the independent sector:

Local authorities should consider encouraging the training and development of care worker staff to at least the standard of the emerging Care Certificate currently being developed by Health Education England, Skills for Care and Skills for Health.

4.30 When commissioning services, local authorities should assure themselves and have evidence that service providers deliver services through staff remunerated so as to retain an effective workforce. Remuneration must be at least sufficient to comply with the national minimum wage legislation for hourly pay or equivalent salary. This will include appropriate remuneration for any time spent travelling between appointments. Guidance on these issues can be found on the HMRC website.

4.31 When commissioning services, local authorities should assure themselves and have evidence that contract terms, conditions and fee levels for care and support services are appropriate to provide the delivery of the agreed care packages with agreed quality of care. This should support and promote the wellbeing of people who receive care and support, and allow for the service provider ability to meet statutory obligations to pay at least the national minimum wage and provide effective training and development of staff. It should also allow retention of staff commensurate with delivering services to the agreed quality, and encourage innovation and improvement. Local authorities should have regard to guidance on minimum fee levels necessary to provide this assurance, taking account of the local economic environment. This assurance should understand that reasonable fee levels allow for a reasonable rate of return by independent providers that is sufficient to allow the overall pool of efficient providers to remain sustainable in the long term. The following tools may be helpful as examples of possible approaches:

4.32 Local authorities should ensure that they themselves have functions and systems in place to fulfil their duties on market shaping and commissioning that are fit for purpose, with sufficient capacity and capability of trained and qualified staff to meet the requirements set out in the Care Act and this statutory guidance. In particular, local authorities should encourage relevant staff to be trained or developed to meet the National Skills Academy standards and programmes of training for care and support commissioners ' Commissioning Now ', or equivalent, and appropriate standards for commissioning related services such as housing services where appropriate. Local authorities should consider the skills and capabilities needed to support new approaches to commissioning, for example, outcomes-based and integrated commissioning. Local authorities should have regard to the emerging skill levels and qualifications being developed for commissioning staff by Skills for Care.

Supporting sustainability

4.33 Local authorities must work to develop markets for care and support that - whilst recognising that individual providers may exit the market from time to time - ensure the overall provision of services remains healthy in terms of the sufficiency of adequate provision of high quality care and support needed to meet expected needs. This will ensure that there are a range of appropriate and high quality providers and services for people to choose from.

4.34 Local authorities should understand the business environment of the providers offering services in their area and seek to work with providers facing challenges and understand their risks. Where needed, based on expected trends, local authorities should consider encouraging service providers to adjust the extent and types of service provision. This could include signalling to the market as a whole the likely need to extend or expand services, encourage new entrants to the market in their area, or if appropriate, signal likely decrease in needs - for example, drawing attention to a possible reduction in care home needs, and changes in demand resulting from increasing uptake of direct payments. The process of developing and articulating a Market Position Statement or equivalent should be central to this process.

4.35 Local authorities should consider the impact of their own activities on the market as a whole, in particular the potential impact of their commissioning and re-commissioning decisions, and how services are packaged or combined for tendering, and where they may also be a supplier of care and support. The local authority may be the most significant purchaser of care and support in an area, and therefore its approach to commissioning will have an impact beyond those services which it contracts. Local authorities must not undertake any actions which may threaten the sustainability of the market as a whole, that is, the pool of providers able to deliver services of an appropriate quality, for example, by setting fee levels below an amount which is not sustainable for providers in the long-term.

4.36 Local authorities should have effective communications and relationships with providers in their area that should minimise risks of unexpected closures and failures, and have effective interaction and communication with the Care Quality Commission ( CQC) about the larger and most difficult to replace providers that CQC will provide financial oversight for. Local authorities should review the intelligence they have about the sustainability of care providers drawn from market shaping, commissioning and contract management activities. [footnote 15] Where the authority believes there is a significant risk to a provider's financial viability, and where they consider it would be in the best interests of service users, the authority should consider what assistance may be provided or brokered to help the provider return to viability, and consider what actions might be needed were that provider to fail. For example, where a local authority has arranged services for people with a provider that appears to be at risk, undertaking early planning to identify potential replacement service capacity. Where it is apparent to a local authority that a provider is likely to imminently fail financially, either through its own intelligence or through information from the CQC, the authority should prepare to take steps to ensure continuity of care and support for people who have their care and support provided by that provider (see chapter 5 on managing provider failure).

Ensuring choice

4.37 Local authorities must encourage a variety of different providers and different types of services. This is important in order to facilitate an effective open market, driving quality and cost-effectiveness so as to provide genuine choice to meet the range of needs and reasonable preferences of local people who need care and support services, including for people who choose to take direct payments, recognising, for example, the challenges presented in remote rural areas for low volume local services.

4.38 Local authorities must encourage a range of different approaches to services to ensure people have a genuine choice of different types of service. This may be achieved by encouraging different types of service provider organisation, for example, independent private providers, third sector, voluntary and community based organisations, including user-led organisations, mutual and small businesses. Local authorities should note that the involvement of people with specific lived experience of the type of needs being met, may lead to better outcomes for people who use services and carers as they directly empathise with service users. This should recognise that the different underpinning philosophies, cultural sensitivity and style of service of these organisations may be more suited to some people with care and support needs. Local authorities should consider encouraging and supporting providers or taking other steps to promote an appropriate balance of provision between types of provider, having regard to competition rules and the need for fairness and legal requirements for all potential providers who may wish to compete for contracts. The TLAP guidance commissioning for provider diversity may be helpful to commissioners.

4.39 When commissioning services to meet people's eligible needs, where a local authority develops approved lists and frameworks that are used to limit the number of providers they work with, for example within a specific geographical area or for a particular service type to achieve strategic partnerships and value for money, the local authority must consider how to ensure that there is still a reasonable choice for people who need care and support.

4.40 For universally available services - for example, prevention - where the local authority does not have a duty to directly arrange services, it should have regard to facilitating this market through market shaping activity to encourage a diversity of service provision. If the authority decides to augment such universal services by directly contracting itself with one or more provider organisations, it should nevertheless continue to ensure that the overall mix of available services presents meaningful choice to people who need these services.

4.41 Local authorities should encourage a genuine choice of service type, not only a selection of providers offering similar services, encouraging, for example, a variety of different living options such as shared lives, extra care housing, supported living, support provided at home, and live-in domiciliary care as alternatives to homes care, and low volume and specialist services for people with less common needs. Local authorities may find the TLAP guidance 'Top Tips: commissioning for market diversity' helpful.

4.42 Choice for people who need care and support and carers should be interpreted widely. Local authorities should encourage choice over the way services are delivered, examples would include: developing arrangements so that care can be shared between an unpaid carer or relative and a paid care worker, a choice over when a service is delivered, choice over who is a person's key care worker, arranging for providers to collaborate to ensure the right provision is available, for example, a private provider and a voluntary organisation working together, choice over when a service is delivered. [footnote 16]

4.43 Local authorities must have regard to ensuring a sufficiency of provision - in terms of both capacity and capability - to meet anticipated needs for all people in their area needing care and support - regardless of how they are funded. This will include regularly reviewing trends in needs including multiple and complex needs, outcomes sought and achieved, and trends in supply, anticipating the effects and trends in prevention and community-based assets, and through understanding and encouraging changes in the supply of services and providers' business and investment decisions. [footnote 17]

4.44 When considering the sufficiency and diversity of service provision, local authorities should consider all types of service that are required to provide care and support for the local authority's whole population, including, for example:

support services and universal and community services that promote prevention

domiciliary (home) care

homes and other types of accommodation care

nursing care

live-in care services

specialist care

support for carers

reablement services

sheltered accommodation and supported living

shared lives services

other housing options

community support

counselling

social work

information, brokerage, advocacy and advice services

direct payment support organisations

4.46 Local authorities should facilitate the personalisation of care and support services, encouraging services (including small, local, specialised and personal assistant services that are highly tailored), to enable people to make meaningful choices and to take control of their support arrangements, regardless of service setting or how their personal budget is managed. Local authorities should have regard to the TLAP partnership agreement that sets out how shaping markets to meet people's needs and aspirations, including housing options, can promote choice and control. Alongside the suitability of living accommodation in Section 1 of the Act, Local authorities should consider how they can encourage the development of accommodation options that can support choice and control and promote wellbeing. Personalised care and support services should be flexible so as to ensure people have choices over what they are supported with, when and how their support is provided and wherever possible, by whom. The mechanism of Individual Service Funds by service providers, which are applicable in many different service types, can help to secure these kinds of flexibilities for people and providers.

4.47 Local authorities should help people who fund their own services or receive direct payments, to 'micro-commission' care and support services and/or to pool their budgets, and should ensure a supporting infrastructure is available to help with these activities. Many local authorities, for example, are utilising web-based systems such as e-Marketplaces for people who are funding their own care or are receiving direct payments to be able to search for, consider and buy care and support services on-line, consider joint purchases with others. This often involves offering information and advice about, for example, the costs and quality of services and information to support safeguarding. This should include facilitating organisations that support people with direct payments and those whose care is funded independently from the local authority to become more informed and effective consumers and to overcome potential barriers such as help to recruit and employ personal assistants and to assist in overcoming problems and issues. This activity should help to match people's wider needs with services.

4.48 Local authorities must facilitate information and advice to support people's choices for care and support. This should include where appropriate through services to help people with care and support needs understand and access the systems and processes involved and to make effective choices. This is a key aspect of the new duty to establish and maintain a universal information and advice service locally as set out in Section 4 of the Care Act. Information and advice services should be reviewed for effectiveness using people's experiences and feedback. This feedback forms part of the overall information a local authority considers about people's needs and aspirations.

4.49 Local authorities should facilitate local markets to encourage a sufficiency of preventative, enablement and support services, including support for carers to make caring more sustainable, such as interpreters, signers and communicator guides, and other support services such as 'telecare', home maintenance and gardening that may assist people achieve more independence and supports the outcomes they want.

4.50 Local authorities should encourage flexible services to be developed and made available that support people who need care and support, and carers who need support, to take part in work, education or training. Services should be encouraged that allow carers who live in one local authority area but care for someone in another local authority area to access services easily, bearing in mind guidance on ordinary residence.

Co-production with stakeholders

4.51 Local authorities should pursue the principle that market shaping and commissioning should be shared endeavours, with commissioners working alongside people with care and support needs, carers, family members, care providers, representatives of care workers, relevant voluntary, user and other support organisations and the public to find shared and agreed solutions. This should be in line with the Building Capacity and Partnership in Care Agreement. The TLAP guidance on co-production may be helpful, in particular the web-based tool People not process - Co-production in Commissioning.

Developing local strategies

4.52 Commissioning and market shaping should be fundamental means for local authorities to facilitate effective services in their area and it is important that authorities develop evidence-based local strategies for how they exercise these functions, and align these with wider corporate planning. Local authorities should have in place published strategies that include plans that show how their legislative duties, corporate plans, analysis of local needs and requirements (integrated with the Joint Strategic Needs Assessment and Joint Health and Wellbeing Strategy), thorough engagement with people, carers and families, market and supply analysis, market structuring and interventions, resource allocations and procurement and contract management activities translate (now and in future) into appropriate high quality services that deliver identified outcomes for the people in their area and address any identified gaps. [footnote 18]

4.53 Since 2007 there has been a duty on local authorities and latterly clinical commissioning groups, through health and wellbeing boards, to undertake Joint Strategic Needs Assessments ( JSNA). JSNA is a process that assesses and maps the needs and demand for health and care and support, supports the development of joint Health and Wellbeing Strategies to address needs, understands community assets and informs commissioning of local health and care and support services that together with community assets meet needs.

4.54 Market shaping and commissioning intentions should be cross-referenced to JSNA, and should be informed by an understanding of the needs and aspirations of the population and how services will adapt to meet them. Strategies should be informed by and emphasise preventative services that encourage independence and wellbeing, delaying or preventing the need for acute interventions. Statutory guidance on JSNA and Joint Health and Wellbeing Strategies was published in March 2013. The ambition is for market shaping and commissioning to be an integral part of understanding and delivering the whole health and care economy, and to reflect the range and diversity of communities and people with specific needs, in particular:

4.55 A co-produced approach will stress the value of meaningful engagement with people at all stages, through design, delivery and evaluation, rather than simply as 'feedback'. Local authorities should publish and make available their local strategies for market shaping and commissioning, giving an indication of timescales, milestones and frequency of activities, to support local accountability and engagement with the provider market and the public.

4.56 It is suggested that a local authority can best commence its duties under Sections 5 (market shaping and commissioning) and 48 to 52 (provider failure) of the Care Act by developing with providers and stakeholders a published Market Position Statement. It may be helpful for Market Position Statements from neighbouring local authority areas to be coordinated to ensure a degree of consistency for people who will use the documents; this is particularly true for urban areas.

4.57 Local authorities should review strategies related to care and support together with stakeholders to ensure they remain fit for purpose, learn lessons, and adapt to incorporate emerging best practice, noting that peer review has a strong track record in driving improvement. It is suggested that reporting against strategies for care and support should form part of the local authority's Local Account.

4.58 Many public sector bodies, including local authorities, have radically transformed services by reconsidering commissioning in a strategic context. The Government's Commissioning Academy is working to promote such transformational approaches and local authorities should have regard to the emerging best practice it is producing.

4.59 Developing a diverse market in care and support services can boost employment and create opportunities for local economic growth, through for example, increasing employment opportunities for working-age people receiving care and carers, and developing the capacity of the care workforce. Local authorities should consider how their strategies related to care and support can be embedded in wider local growth strategies, for example, engaging care providers in local enterprise partnerships.

4.60 Recognising that changes to adult care and support are taking place at a time of the need to deliver services from constrained resources, local authorities should have regard to best practice on efficiency and value for money, in particular the LGA's Adult Social Care Efficiency Programme.

4.61 Local authority strategies should adhere to general standards, relevant laws and guidance, including the Committee of Standards in Public Life principles of accountability, regularity and ensuring value for money alongside quality, and the HM Treasury guidance on managing public money.

4.62 Local authorities should develop standards on transparency and accountability to ensure citizens are able to contribute to and understand policy and review delivery. Standards should be in line with the codes of practice drawn up by the Department of Communities and Local Government.

4.63 Local authorities should take the lead to engage with a wide range of stakeholders and citizens in order to develop effective approaches to care and support, including through developing the JSNA and a Market Position Statement. While the duties under section 5 of the Care Act fall upon local authorities, successful market shaping is a shared endeavour that requires a range of coordinated action by commissioners and providers, working together with the citizen at the centre. Local authorities should engage and cooperate with stakeholders to reflect the range and diversity of communities and people with specific needs, for example:

people needing care and support themselves and their representative organisations

carers and their representative organisations

health professionals

social care managers and social workers

independent advocates

support organisations that help people who need care consider choices (including financial options)

provider organisations (including where appropriate private housing providers and registered social landlords)

the wider local population including individuals and communities who are less frequently heard (for example, LGBT communities where there may be a lack of data on care and support needs and preferences) or at risk from exclusion, including those who have communication issues and involving representatives of those who lack mental capacity [footnote 19].

4.64 Engagement with people needing care and support, people likely to need care and support, carers, independent advocates, families and friends, should emphasise understanding the needs of individuals and specific communities, what aspirations people have, what outcomes they would like to achieve, their views on existing services and how they would like services to be delivered in the future. [footnote 20] It should also seek to identify the types of support and resources or facilities available in the local community which may be relevant for meeting care and support needs, to help understand and build community capacity to reinforce the more formal, regulated provider market. In determining an approach to engagement, local authorities should consider methods that enable people to contribute meaningfully to:

4.65 Engagement with service providers should emphasise understanding the organisation's strategies, risks, plans, and encourage building trusting relationships and fostering improvement and innovation to better meet the needs of people in the area. Local authorities should consider engagement with significant suppliers of services to provider organisations, where this would help improve their understanding of markets, for example, engaging with employment and training services that might enable local authorities to gain access to frontline insights on care provision and the local workforce supply and training.

4.66 Local authorities should ensure that active engagement and consultation with local people is built into the development and review of their strategies for market shaping and commissioning, and is demonstrated to support local accountability (for example, via the Local Account).

4.67 Local authorities should engage positively with provider organisations to ensure fair play and necessary confidentiality. The Think Local Act Personal ( TLAP) partnership has produced guidance that may assist in the process - Stronger Partnerships for Better Outcomes and Commissioning the future: start a new conversation. Local authorities may also find the IPC 'Market shaping toolkit (MaST): supporting local authority and SME care provider innovation and collaboration' useful in supporting positive engagement with providers.

4.68 Local authorities should make available to providers available routes to register concerns or complaints about engagement and commissioning activities. Local authorities should consider the adequacy and effectiveness of these routes and processes as part of their engagement and trust-building activities.

Undertaking market shaping and commissioning

Understanding the market

4.69 Local authorities must understand local markets and develop knowledge of current and future needs for care and support services, and, insofar as they are willing to share and discuss, understand providers' business models and plans. This is important so that authorities can articulate likely trends in needs and signal to the market the likely future demand for different types of services for their market as a whole, and understand the local business environment, to support effective commissioning. Activities to understand the market should appropriately reflect an authority's strategic plans for integrating health, social care and related services and will require the cooperation of those other parties, as well as other authorities in the region, to ensure a complete picture.

4.70 Local authorities (through an engagement process, in concert with commissioners for other services where appropriate) should understand and articulate the characteristics of current and future needs for services. This should include reference to underpinning demographics, drivers and trends, the aspirations, priorities and preferences of those who will need care and support, their families and carers, and the changing care and support needs of people as they progress through their lives. This should include an understanding of:

4.71 It should include information and analysis of low incidence needs and multiple and complex conditions as well as more common conditions such as sensory loss. The RNIB has a tool to help local authorities scope the needs of people with sight impairment. It should also include information about likely changes in requirements for specialist housing required by people with care and support needs. The online tool SHOP@ developed by the Housing Learning and Improvement Network may be helpful.

4.72 Local authorities should have in place robust methods to collect, analyse and extrapolate this information about care and support needs, including as appropriate information about specific conditions (for example, neurological conditions such as Stroke, Parkinson's, and Motor Neurone Disease), and multiple and complex needs. This should sit alongside information about providers' intentions to deliver support over an appropriate timescale - likely to be at least 5 years into the future, with alignment to other strategic timeframes. Data collection should include information on the quality of services provided in order to support local authority duties to foster continuous improvement. This could be achieved, for example, by collecting and acting on feedback from people who receive care, their families and carers alongside information on the specific nature of the services people receive (for example, regularity and length of homecare visits). This will allow for an assessment of correlation between customer experience and service provision. Data collection must be sufficient to allow local authorities to meet their duties under the Equality Act 2010.

4.73 Local authorities should include in their engagement and analysis, services and support provided by voluntary, community services, supported housing providers, and other groups that make up 'community assets' and plan strategically to encourage, make best use of and grow these essential activities to integrate them with formal care and support services.

4.74 Local authorities should also seek to understand trends and changes to the levels of support that are provided by carers, and seek to develop support to meet their needs, noting that amongst other sources, census data include information on carers and their economic activity. Local authorities should understand the trends and likely changes to the needs of carers in employment, so as to better plan future support.

4.75 In order to understand future trends in needs and demands, local authorities should include an understanding of people who are or are likely to be both wholly or partly state funded, and people who are or are likely to be self-funding. It should also include an analysis of those self-funding people who are likely to move to state funding in the future.

4.76 The understanding of needs should also include an understanding of the likely demand for state-funded services that the local authority will need to commission directly, and state-funded services likely to be provided through direct payments and require individuals to 'micro-commission' services. Local authorities should also consider the extent to which people receiving services funded by the state may wish to 'top up' their provision to receive extra services or premium services - that is, the assessment of likely demand should be for services that people are likely to need and be prepared to pay for through top ups.

4.77 The assessment of needs should be integrated with the process of developing, refining and articulating a local authority's Joint Strategic Needs Assessment. Where appropriate, needs should be articulated on an outcomes basis.

4.78 In order to gather the necessary information to shape its market, local authorities should engage with providers (including the local authority itself if it directly provides services) to seek to understand and model current and future levels of service provision supply, the potential for change in supply, and opportunities for change in the types of services provided and innovation possible to deliver better quality services and greater value for money. Local authorities should understand the characteristics of providers' businesses, their business models, market concentration, investment plans. Information about both supply and expected demand for services should be made available publicly to help facilitate the market and empower communities and citizens when considering care and support. Smaller care providers should be included in engagement. Local authorities may find helpful the guidance Supporting Local Authority and SME Care Provider Innovation and Collaboration that was co-produced by the Department of Health with ADASS and LGA, provider organisations and people with lived experience.

4.79 Assessment of supply and potential demand should include an awareness and understanding of current and future service provision and potential demand from outside the local authority area where this is appropriate, for example in considering services to meet highly specialised and complex needs, care and support may not be available in the local authority area, but only from a small number of specialised providers in the country. Consideration should be given to whether such services might better be commissioned and facilitated regionally.

Facilitating the development of the market

4.80 Local authorities should collaborate with stakeholders and providers to bring together information about needs and demands for care and support with that about future supply, to understand for their whole market the implications for service delivery. This will include understanding and signalling to the market as a whole the need for the market to change to meet expected trends in needs, adapt to enhance diversity, choice, stability and sustainability, and consider geographic challenges for particular areas. To this picture, local authorities should add their own commissioning strategy and future likely resourcing for people receiving state-funding. Local authorities should consider co-ordinating these market shaping and related activities with other neighbouring authorities where this would facilitate better outcomes.

4.81 Local authorities should consider how to support and empower effective purchasing decisions by people who self-fund care or purchase services through direct payments, recognising that this can help deliver a more effective and responsive local market.

4.82 Local authorities should ensure that the market has sufficient signals, intelligence and understanding to react effectively and meet demand, a process often referred to as market structuring or signalling. Local authorities should publish, be transparent and engage with providers and stakeholders about the needs and supply analysis to assist this signalling. It is suggested that this is best achieved through the production and regular updating of a document like a Market Position Statement that clearly provides evidence and analysis and states the local authority's intent. A Market Position Statement is intended to encourage a continuing dialogue between a local authority, stakeholders and providers where that dialogue results in an enhanced understanding by all parties is an important element of signalling to the market.

4.83 A Market Position Statement should contain information on: the local authority's direction of travel and policy intent, key information and statistics on needs, demand and trends, (including for specialised services, personalisation, integration, housing, community services, information services and advocacy, and carers' services), information from consumer research and other sources about people's needs and wants, information to put the authority's needs in a national context, an indication of current and future authority resourcing and financial forecasts, a summary of supply and demand, the authority's ambitions for quality improvements and new types of services and innovations, and details of, or cross-references to the local authority's own commissioning intentions, strategies and practices [footnote 22].

4.84 Developing and then making publicly available a Market Position Statement is one way a local authority can meet its duties to make available information about the local market, and demonstrates activity to meet the other parts of Section 5 of the Act. The DCMQC web pages include exemplar Market Position Statements and links to examples of good practice. Market Position Statements for care and support services should combine, cross-refer or otherwise complement other similar statements for related services, particularly where there is an integrated approach or ambition, for example, housing. The paper from the Housing Learning and Improvement Network on developing MPS for housing services may be helpful.

4.85 As part of developing and publishing a document like a Market Position Statement, local authorities should engage with stakeholders and partners to structure their markets. This could include:

discussions with potential providers

actively promoting best practice and models of care and support

understanding the business planning cycles of providers

aligning interactions and supporting the provider's business planning

identifying and addressing barriers to market entry for new providers

facilitating entry to the market through advice and information

streamlining the authority's own procurement processes

promoting diversification of provider organisations

working with providers on an 'open-book accounting' approach [footnote 23] to cost current and future services and ensure provider sustainability

supporting providers through wider local authority activity - planning, business support and regeneration

4.86 Local authorities may consider that market structuring activity - signalling to the market and providing assistance - is not achieving the strategic aims as quickly or as effectively as needed, and may wish to consider more direct interventions in the market. Market interventions may also be planned as part of the market shaping and commissioning strategies where there is an immediate need for intervention.

4.87 Market interventions could for example include: refocusing local authority business support initiatives onto the care and support sector, exploring how local care and support projects could attract capital investments and support and what guarantees may be needed, encouraging and supporting social enterprises, micro-enterprises, Community Interest Companies, and User-Led Organisations (for example, incentivising innovation by third sector providers, possibly through grant funding), exploring planning barriers and using planning law, offering access to training and development opportunities.

4.88 Local authorities should consider monitoring progress toward the ambitions set out in the Market Position Statement, and making that progress public along with information about its own commissioning decisions, as part of a commitment to transparency and accountability. This would demonstrate that the authority's commissioning activity is in line with the ambition and direction of travel articulated in its Market Position Statement, and might be achieved by including this information in regular updates to the Market Position Statement.

Case Study Facilitating the market

Warwickshire Council's Market Position Statement for Older People identified a significant growth in the number of people living with dementia in the county, coupled with a declining trend in the number of people accessing traditional day services in the previous 4 to 5 years. Day services provide stimulation for the person living with dementia as well as a break for the person's carer.

Following this the Council undertook a full review of Dementia Community Support. This included evaluating the role of services funded by the NHS and the Council and also those provided directly by the voluntary and community sector.

The Council held an engagement event to establish what customers and carers want dementia Community Support services to look like and deliver. This identified the gaps between supply and demand in more detail and at a local level. The event also gathered information from providers and voluntary and community groups about the challenges of delivering services. Providers identified commissioning models which promote strong and stable service delivery whilst still allowing flexible responses to meet individual needs as particularly useful. As a result of this activity, the Council is now in the process of procuring a new service model for Dementia Community Support. The model will include information and advice, community services, building-based respite and specialist support.

4.89 The Health and Social Care Act 2012 sets out specific obligations for the health system and its relationship with care and support services. It gives a duty to NHS England, clinical commissioning groups, Monitor and Health and Wellbeing Boards to make it easier for health and social care services to work together to improve outcomes for people. Section 3 of the Care Act places a corresponding duty on local authorities to carry out their care and support functions with the aim of integrating services with those provided by the NHS or other health-related services, such as housing.

4.90 Local authorities should also consider working with appropriate partners to develop integration with services related to care and support such as housing, employment services, transport, benefits and leisure services. Local authorities should prioritise integration activity in areas where there is evidence that effective integration of services materially improves people's wellbeing, for example, end of life care, and should take account of the key national and local priorities and objectives of the Better Care Fund, for example, stopping people reaching crisis and reducing the emergency admissions to hospitals.

4.91 Integrated services built around an individual's needs are often best delivered through the home. The suitability of living accommodation is a core component of an individual's wellbeing and when developing integrated services, local authorities should consider the central role of housing within integration, with associated formal arrangements with housing and other partner organisations.

4.92 Local authorities should work towards providing integrated care and support, providing services that work together to provide better outcomes for individuals who need care and support and enhancing their wellbeing, noting that this will require the sharing of information about current and future needs and likely service provider's responses to underpin a holistic approach to developing integrated care and support pathways. Further information can be found in the chapters of this statutory guidance on integration (chapters 15 to 18). NHS guidance and LGA case studies on integration may be helpful, together with the toolkit for integration developed by North West London Whole System Integrated Care (particularly chapter 7 on budget pooling, governance arrangements and commissioning issues in general).

4.93 Local authorities should consider with partners, the enabling activities, functions and processes that may facilitate effective integrated services. For example Bexley LA and CCG joint commissioning of preventative services. These will include consideration of: joint commissioning strategies, joint funding, pooled budgets, lead commissioning, collaborative commissioning, working with potential service providers to consider innovative ways of arranging and delivering services, and making connections to public health improvement.

Securing supply in the market and assuring its quality and value for money through contracting

4.94 Local authorities should consider best practice on commissioning services, for example the NAO guidance to ensure they deliver quality services with value for money. 'Value for money' means optimal use of resources to achieve intended outcomes, and must reference the quality of service delivered and the outcomes achieved for people's wellbeing, and should not be solely based on achieving the lowest cost. Achieving value for money may mean arranging service provision collaboratively with other authorities, in order to secure viable, quality services that meet the demands identified, for example, low-volume services.

4.95 Commissioning and procurement practices must deliver services that meet the requirements of the Care Act and all related statutory guidance. Re-commissioning and replacing services represents a particular challenge and should be carried out so as to maintain quality and service delivery that supports the wellbeing of people who need care and support and carers, and guards against the risk of a discontinuity of care and support for those receiving services. For example, multiple contracts terminating around the same time may destabilise local markets if established providers lose significant business rapidly and staff do not transfer smoothly to new providers.

4.96 De-commissioning services where there is to be no replacement service should similarly be carried out so as to maintain the wellbeing of people who need care and support, and carers, and ensures that their eligible needs continue to be met.

4.97 Local authorities should consider the contract arrangements they make with providers to deliver services, including the range of block contracts, framework agreements, spot contracting or 'any qualified provider' approaches, to ensure that the approaches chosen do not have negative impacts on the sustainability, sufficiency, quality, diversity and value for money of the market as a whole - the pool of providers able to deliver services of appropriate quality.

4.98 A local authority's own commissioning should be delivered through a professional and effective procurement, tendering and contract management, monitoring, evaluation and decommissioning process that must be focussed on providing appropriate high quality services to individuals to support their wellbeing and supporting the strategies for market shaping and commissioning, including all the themes set out in this guidance.

4.99 Local authorities should ensure that they understand relevant procurement legislation, and that their procurement arrangements are consistent with such legislation and best practice. Local authorities should be aware that there is significant flexibility in procurement practices to support effective engagement with provider organisations and support innovation in service delivery, potentially reducing risks and leading to cost-savings. The Office of Fair Trading produced guidance to help public purchasers understand the flexibilities so as to support service transformations through better commissioning. The Market Shaping Toolkit, produced by the Institute of Public Care includes a section summarising recent changes to procurement rules, including EU procurement rules and the implications for commissioners. Government has also produced guidance on when reserved contracts may be allowable for organisations employing a significant number of disabled people these documents may be helpful to commissioners.

4.100 Local authorities should ensure that their procurement and contract management and monitoring systems provide direct and effective links to care service managers and social workers to ensure the outcomes of service delivery matches individual's care and support needs and that where the local authority arranges services, people are given a reasonable choice of provider. Contract management should take account of feedback from people receiving care and support.

4.101 Local authorities should ensure that where they arrange services, the assessed needs of a person with eligible care and support needs is translated into effective, appropriate commissioned services that are adequately resourced and meet the wellbeing principle of the Act. For example, short home-care visits of 15 minutes or less are not appropriate for people who need support with intimate care needs, though such visits may be appropriate for checking someone has returned home safely from visiting a day centre, or whether medication has been taken (but not the administration of medicine) or where they are requested as a matter of personal choice.

4.102 When commissioning services, local authorities should pay particular attention to ensuring that providers have clear arrangements in place to prevent abuse or neglect. This should include assuring themselves, through their contracting arrangements, that a provider is capable and competent in responding to allegations of abuse or neglect, including having robust processes in place to investigate the actions of members of staff. Local authorities should be clear what information they expect from providers (for example, where there are allegations of abuse, what action the provider is taking or has taken and what the outcome is) and where providers are expected to call upon local authorities to lead a Section 42 enquiry (where the management of the provider is implicated for instance), or to involve the CCG (for health matters) or police (for example, in the case of potential crimes). There should be clear agreement about how local partners work together on investigations and what their respective roles and responsibilities are.

4.103 When commissioning services, local authorities should undertake due diligence about the financial sustainability and effectiveness of potential providers to deliver services to agreed criteria for quality, and should assure themselves that any recent breaches of regulatory standards or relevant legislation by a potential provider have been corrected before considering them during tendering processes. For example, where a provider has previously been in breach of national minimum wage legislation, a local authority should consider every legal means of excluding them from the tendering process unless they have evidence that the provider's policies and practice have changed to ensure permanent compliance.

4.104 Contracts should incentivise value for money, sustainability, innovation and continuous improvement in quality and actively reward improvement and added social value. Contracts and contract management should manage and eliminate poor performance and quality by providers and recognise and reward excellence.

4.105 Local authorities are under a duty to consider added social value when letting contracts through the Public Services (Social Value) Act 2012 and are required to consider how the services they procure, above relevant financial thresholds, might improve the economic, social and environmental wellbeing of the area. Local authorities should consider using this duty to promote added value in care and support both when letting contracts to deliver care and support, and for wider goods and services. This should include considering whether integrated services, voluntary and community services and 'community capital' could be enhanced, recognising that these community assets provide the bedrock of care and support that commissioned and bought services supplement. Local authorities should consider the range of funding mechanisms that are available to support market interventions to support community based organisations such as seed funding and grants.

4.106 All services delivered should adhere to national quality standards, with procedures in place to assure quality, safeguarding, consider complaints and commendations, and continuing value for money, referencing the CQC standards for quality and CQC quality ratings.

4.107 Local authorities may consider delegating some forms of contracting to brokers and people who use care and support to support personal choice for people who are not funded by the local authority and those taking direct payments, with appropriate systems in place to underpin the delivery of safe, effective appropriate high quality services through such routes. Where functions and activities are delegated, local authorities should ensure that appropriate elements of this statutory guidance are included in contractual conditions, for example, allowing engagement in developing Market Position Statements. Local authorities should also consider providing support to people who wish to use direct payments to help them make effective decisions through, for example, Direct Payment support organisations.

4.108 Local authority procurement and contract management activities should seek to minimise burdens on provider organisations and reduce duplications, where appropriate, using and sharing information, with for example the CQC.

4.109 Recognising that procurement is taking place against a backdrop of significant demand on commissioners to achieve improved value for money and make efficiencies, local authorities should consider emerging practice on achieving efficiencies without undermining the quality of care.

Further information/best practice

4.110 The different approaches provided in footnotes in this guidance are meant as illustrative examples rather than recommendations or endorsements.

4.111 The Department of Health funded a programme during 2013 to 2014 to support local authorities prepare for market shaping duties; further information is available on the Developing Care Markets for Quality and Choice programme website. The Department also funded a project to develop commissioning standards, Commissioning for Better Outcomes, which are designed to support local authorities, through peer challenge and self-assessment to move towards commissioning practices which underpins the themes of this statutory guidance.

4.112 The Developing Care Markets programme, Commissioning for Better Outcomes, and the market shaping toolkit develop the themes presented in this statutory guidance and will themselves point to examples of best practice and support tools that demonstrate how these themes have been introduced and delivered effectively.

5. Managing provider failure and other service interruptions

This chapter provides guidance on:

Sections 19 and 48 to 57 of the Care Act 2014

The Care and Support (Business Failure) Regulations 2015

This chapter covers:

service interruptions because of business failure, this chapter explains what local authorities must do if a provider is unable to carry on because of business failure

business failure involving a provider in the Care Quality Commission's (CQC) market oversight regime. This section explains CQC's role if business failure occurs and the link with the local authority's temporary duty

business failure involving a provider not in the CQC market oversight regime. This section explains what local authorities must do if the business failure involves a provider not in the CQC regime

administration and other insolvency procedures. This section explains the relationship between local authorities and persons such as an Administrator appointed in insolvency proceedings

service interruptions other than business failure. This section explains local authorities' powers where a service is interrupted for other reasons

the link with local authorities' duties in respect of market shaping. This section explains how local authorities' market shaping activities can play a part in effectively addressing service interruptions

the need for contingency planning. This section explains how local authorities should consider having contingency plans in advance to address the service interruptions that pose the greatest risk locally

5.1 The possibility of interruptions to care and support services causes uncertainty and anxiety for people receiving services, their carers, family and friends. This guidance explains how the Care Act makes provision to ensure that, in such circumstances, the care and support needs of those receiving the service continue to be met. It describes local authorities' powers and duties when services are at risk of interruption in general and, in particular, when the interruption is because a provider's business has failed. It provides guidance to local authorities on the exercise of those powers and the discharge of those duties.

5.2 Interruptions can arise from a number of different causes. An example is when a provider of services faces commercial difficulties that put the continuation of their business under threat. In 2011, Southern Cross Healthcare, then the biggest provider of residential care services in the United Kingdom, ran into financial difficulties and it was possible the business would have to close down, putting services to residents at risk. While Southern Cross was a provider of services in all parts of the country, smaller local providers can also encounter commercial issues which cause uncertainty for people receiving care and support. Local authorities have an important role in situations where a provider is unable to continue to supply services because of business failure.

5.3 There are numerous other situations that can cause disruption to care and support services. Some may impact on the whole business - for example, a provider decides to close the business down - while others impact on a particular service - for example, a meningitis outbreak at a care home. Local authorities should use their powers to act in such cases, as set out below.

Definitions

5.4 'Business failure' is defined in The Care and Support (Business Failure) Regulations 2015. These Regulations define what is meant by 'business failure' and explain the circumstances in which a person is to be treated as being unable to do something because of business failure. Business failure is defined by a list of different events such as the appointment of an administrator, the appointment of a receiver or an administrative receiver (the full list appears in the Regulations). Service interruption because of 'business failure' relates to the whole of the regulated activity and not to parts of it.

5.5 'Temporary duty' or 'duty' means the duty on local authorities to meet needs in the case of business failure. 'Temporary' means the duty continues for as long as the local authority considers it necessary. The temporary duty applies regardless of whether a person is ordinarily resident in the authority's area. The duty applies from the moment the authority becomes aware of the business failure. The actions to be taken by authorities will depend on the circumstances, and may include the provision of information. The duty is to meet needs but authorities have discretion as to how they meet those needs.

Service interruptions because of business failure

5.6 Business failure of a major provider is a rare and extreme event and does not automatically equate to closure of a service. It may have no impact on residents or the people who use the services. However, if a provider of any size is unable to continue because of business failure, the duties on local authorities are as follows.

5.7 Local authorities are under a temporary duty to meet people's needs when a provider is unable to continue to carry on the relevant activity in question because of business failure. The duty applies when a service can no longer be provided and the reason for that is that the provider's business has failed. If the provider's business has failed but the service continues to be provided then the duty is not triggered. This often may happen in insolvency situations where an administrator is appointed and continues to run the service.

5.8 The duty applies where a failed provider was meeting needs in the authority's area. It does not matter whether or not the authority has contracts with that provider, nor does it matter if all the people affected are self-funders (for example, arranging and paying for their own care). The duty is in respect of people receiving care by that provider in that authority's area - it does not matter which local authority (if any) made the arrangements to provide services.

5.9 The needs that must be met are those that were being met by the provider immediately before the provider became unable to carry on the activity. Local authorities must ensure the needs are met but how that is done is for the local authority to decide, and there is significant flexibility in determining how to do so, as set out in section 8 of the Care Act. It is not necessary to meet those needs through exactly the same combination of services that were previously supplied. However, when deciding how needs will be met, local authorities must involve the person concerned, any carer that the person has, or anyone whom the person asks the authority to involve (see chapter 10 on care and support planning). Where the person lacks capacity to ask the authority to do that, the local authority must involve anyone who appears to the authority to be interested in the person's welfare. Where a carer's service is involved, local authorities must involve the carer and anyone the carer asks the authority to involve. The authority must take all reasonable steps to agree how needs should be met with the person concerned. It should seek to minimise disruption for people receiving care, in line with the wellbeing principle and, although authorities have discretion about how to meet needs, the aim should be to provide a service as similar as possible to the previous one.

5.10 An authority has the power, where it considers this necessary to discharge the temporary duty, to request that the provider, or anyone involved in the provider's business as it thinks appropriate, to supply it with information that it needs. This may involve, for example, up-to-date records of the people who are receiving services from that provider, to help the local authority to identify those who may require its support.

5.11 The authority should act promptly to meet people's needs. The lack of a needs or carer's assessment or a financial assessment for a person must not be a barrier to action. Neither is it necessary to complete those assessments before or whilst taking action. Similarly, authorities must meet needs irrespective of whether those needs would meet the eligibility criteria. All people receiving services in the local authority's area are to be treated the same. In particular, how someone pays for the costs of meeting their needs - for example, in full by the person themselves - must have no influence on whether the authority fulfils the duty. However, an authority may charge the person for the costs of meeting their needs, and it may also charge another local authority which was previously meeting those needs, if it temporarily meets the needs of a person who is not ordinarily resident in its area. The charge must cover only the actual cost incurred by the authority in meeting the needs. No charge must be made for the provision of information and advice to the person.

5.13 In fulfilling this function, authorities must follow the general duties to cooperate (see chapter 15). Where a person is not ordinarily resident in an authority's area, that authority must cooperate with the authority which was arranging for the needs to be met previously (for example, before the provider became unable to carry on because of business failure). The duty of cooperation applies equally where the needs being met previously were paid for (in full or in part) by another authority through a direct payment to the person concerned.

5.14 Authorities that disagree on whether and/or how the law (for example, section 48) applies in these circumstances may apply to the Secretary of State for a determination of a dispute under the procedure that applies to disputes over ordinary residence or continuity of care (see chapters 19 and 20).

5.15 All of the duties on local authorities described above apply equally if the needs the authority must meet were, at the time the provider became unable to carry on because of business failure, being met under arrangements made by local authorities in Wales, Scotland or Northern Ireland under the legislation that applies in those countries. English local authorities may recover from their counterparts in Wales, Scotland and Northern Ireland the costs incurred in meeting the person's needs. If applicable, English authorities can also recover costs from the person themselves (other than the costs of needs being met or funded by the authorities mentioned above).

5.16 Disputes between authorities in England, Wales, Scotland or Northern Ireland about whether or how the temporary duty applies in cross-border situations are to be resolved under the legislation governing disputes about cross-border placements in Schedule 1 and the relevant regulations (see chapter 22).

Business failure involving a provider in the CQC oversight regime

5.17 In April 2015, the financial 'health' of certain care and support providers became subject to monitoring by the Care Quality Commission ( CQC). The Care and Support (Market Oversight Criteria) Regulations 2015 set out the entry criteria for a provider to fall within the regime. These are intended to be providers which, because of their size, geographic concentration or other factors, would be difficult for one or more local authorities to replace, and therefore where national oversight is required. CQC will determine which providers satisfy the criteria using data available to it. It will notify the providers which meet the entry criteria.

5.18 CQC must then assess the financial sustainability of the provider's business. If it assesses there is a significant risk to the financial sustainability of the provider's business, there are certain actions CQC may take with that provider (none of which involve local authorities).

5.19 Where CQC is satisfied that a provider in the regime is likely to become unable to continue with their activity because of business failure, it is required to tell the local authorities which it thinks will be required to carry out the temporary duty, so that they can prepare for the local consequences of the business failure. CQC will inform local authorities once it is satisfied the provider is unlikely to be able to carry on because of business failure. CQC's trigger to contact authorities is that it believes the whole of the regulated activity in respect of which the provider is registered is likely to fail, not parts of it. It is not required to make contact with authorities if, say, a single home owned by the provider in the regime is likely to fail because it is unprofitable and the CQC is not satisfied that this will lead to the whole of the provider's relevant regulated activity becoming unable to continue. In these circumstances, it is the provider's responsibility to wind down and close the service in line with its contractual obligations and it is expected that providers would do so in a planned way that does not interrupt people's care.

5.20 Where CQC considers it necessary to do so to help a local authority to carry out the temporary duty, it may request the provider to provide it with information and CQC must then give the information, and any further relevant information it holds, to the local authorities affected. If the CQC is of the view that a provider is likely to become unable to continue with its activity because of business failure, the CQC should work closely together with the affected local authorities to help them fulfil their temporary duty. In exercising its market oversight functions, CQC must have regard to the need to minimise the burdens it imposes on others.

Business failure involving a provider not in the CQC oversight regime

5.21 Regulations set out the entry criteria into the CQC regime. It will be for CQC to apply those regulations and decide which providers are included. There are many thousands of providers in England and only a relatively small number of providers fall in the regime. The providers outside the regime will in the main be those with small and medium size businesses.

5.22 The temporary duty on local authorities to meet needs in the case of business failure applies regardless of whether the provider is in the market oversight regime. Despite the CQC having a market oversight responsibility, local authorities have responsibility to ensure continuity of care in respect of business failure of all registered providers.

Administration and other insolvency procedures

5.23 Business failure (as defined) will usually involve an official being appointed for example, an Administrator to oversee the insolvency proceedings. An Administrator represents the interests of the creditors of the provider that has failed and will typically try to rescue the company as a going concern. In these circumstances, the service will usually continue to be provided, and the exercise of local authorities' temporary duties may not be called for. It is not for local authorities to become involved in the commercial aspects of the insolvency, but they should cooperate with the Administrator if requested. Local authorities should, insofar as it does not adversely affect people's safety and wellbeing, support efforts to maintain service provision by, for example, not prematurely withdrawing people from the service that is affected, or ceasing to commission that service.

Service interruptions other than business failure

5.25 Sections 18 and 20 of the Care Act set out when a local authority must meet a person's eligible needs. They place duties on the local authority. If the circumstances described in the sections apply and the needs are eligible, the local authority must meet the needs in question. These duties apply whether or not business failure is at issue.

5.26 Section 19 of the Care Act covers the circumstances where care and support needs may be met for example, circumstances where no duties arise under section 18 but the local authority may nevertheless meet an adult's needs. In particular, section 19(3) permits a local authority to meet needs which appear to it to be urgent. In this context, 'urgent' takes its everyday meaning, subject to interpretation by the courts, and may be related to, for example, time, severity. This is likely to be the case in many situations where services are interrupted but business failure is not the cause. The power in section 19(3) can be exercised in order to meet urgent needs without having first conducted a needs assessment, financial assessment or eligibility criteria determination. The local authority may meet urgent needs regardless of whether the adult is ordinary resident in its area. This means the local authority can act quickly if circumstances warrant. The power to meet urgent needs is not limited by reference to services delivered by particular providers and is thus available where urgent needs arise as a result of service failure of an unregistered provider (for example, a provider of an unregulated social care activity). The power may also be used in the context of quality failings of providers if that is causing people to have urgent needs.

5.27 This section gives local authorities a power to act to meet needs, but it does not require that authorities must act. Whether or not to act is a decision for the authority itself but authorities should consider the examples which follow.

5.28 In relation to service interruption, circumstances that might lead to the exercise of the power include where the continued provision of care and support to those receiving services is in imminent jeopardy and there is no likelihood of returning to a 'business as usual' situation in the immediate future, leading to urgent needs. Not all situations where a service has been interrupted or closed will merit local authority involvement because not all cases will result in adults having urgent needs. For example, if a care home closes and residents have agreed to the provider's plans to move the residents to a nearby care home that the provider also owns, local authorities will not necessarily have to become actively involved as urgent needs might not arise. On the other hand, the local authority might wish to be satisfied that the alternative home can adequately meet the urgent needs. Whether to act under this power is a judgement for the local authority to make in the first instance.

5.29 If a provider has not failed, it is primarily the provider's responsibility to meet the needs of individuals receiving care in accordance with its contractual liabilities. The local authority may wish to be involved to help with this. The power provides an ultimate backstop for use where the provider cannot or will not meet its responsibilities, and where the authority judges that the needs of individuals are urgent (and where the local authority is not already under a duty to meet the adult's needs, for example under section 18).

5.30 A service closure may be temporary (for example, unforeseen absence of qualified staff) or permanent (for example, the home is to be sold on for use as a hotel). Similarly, an emergency closure or planned closure may be involved. What matters in deciding whether to meet needs is whether the needs of the people affected appear to be urgent. For example, the sale of a provider's business may be a positive development for residents, service users and commissioners alike and may not lead to urgent needs. These powers are not intended to inhibit the effective operation of a market in improving choice, quality and investment.

5.31 Where the local authority does get involved in ensuring needs continue to be met, that involvement might be short-lived (for example, the giving of advice) or enduring over some months (for example, overseeing the movement of residents following the closure of several homes owned by the same provider). Acts of God (for example, flooding) or complications with suppliers (for example, a nursing agency refuses to continue to provide qualified staff) should not in themselves automatically be considered to trigger the use of the power. In all cases, the test is whether the local authority considers there is an urgent need to be met.

5.32 When considering action in relation to service interruption or closure, there is a balance to be struck. On the one hand, if local authorities know there is a serious risk to the continued provision of a service, they may consider not using that service temporarily or reassigning people using that service to an alternative service. On the other hand, it may be possible and justifiable for the local authority to act in a way that maximises the provider's chances of continuing to provide the service and avoiding a business failure. Local authorities should weigh the consequences of their actions before deciding how to respond, in particular, how their actions might impact on the likelihood of the service continuing. Certain actions may increase the risk of precipitating the business failure.

5.33 In summary, each service interruption should be considered on its facts and assessed by the local authority through a process of risk assessment. It is for the local authority to decide if it will act to meet a person's needs for care and support which appear to it to be urgent. In exercising this judgement the local authority must act lawfully, including taking decisions that are reasonable.

5.34 Section 5 and the associated guidance sets out authorities' duties to promote the efficient and effective operation of the local market in care and support services (see chapter 4). Central to this function is the need to ensure that the authority has, and makes available, information about the providers of care and support services in its area and the types of services they provide. This gathering of market intelligence is equally relevant to authorities' responses to business failure and other service interruptions. Where alternative services are to be put in place, an effective response requires a thorough knowledge of the market, which providers provide which services, the quality of each provider's services and where there is spare capacity in service provision. In anticipating potential service interruptions, there is also a need to know the vulnerabilities in the operation of the market. For example, is there only one local provider of a particular service and no alternatives exist locally, or does one provider cater for a substantial part of the local market and alternative capacity could not be found easily? Service interruptions involving such providers are likely to be more difficult to address. Local authorities should have knowledge of market vulnerabilities, market capacity and capabilities such as this in order to respond effectively to service interruptions.

5.35 Local authorities should understand how providers in their area are coping with the current trading conditions through discussions with the providers themselves. Authorities can achieve this without the collection of detailed financial metrics, accounts and business plans that CQC might utilise in respect of the major corporate providers in the regime. The business failure of providers outside the CQC regime will be on a smaller scale, usually with lesser impact, and local authorities should take a proportionate approach to anticipating or getting early warning of business failure. Local authorities may find the Cordis Bright guidance and toolkit: Assessing care market and provider sustainability helpful in developing a proportionate approach. Given CQC is responsible for monitoring the financial sustainability of providers falling within the market oversight scheme, it is not necessary for authorities also to ask for detailed financial information from these providers.

The need for contingency planning

5.36 Most service interruptions are on a small scale and are easily managed but service interruptions on a large scale pose far greater problems. If a provider which operates nationwide fails, few local authorities are likely to be able to respond effectively on their own. Local authorities should consider how they would respond to different service interruptions and, where the involvement of neighbouring authorities would be essential in order to maintain services, ensure effective liaison and information sharing arrangements are set up in advance. Close cooperation between authorities may be particularly required where an authority has a substantial number of people placed within its area by other authorities.

5.37 As part of contingency planning, authorities should discuss with local providers which services they would be willing and able to provide if the need arose because another local provider had failed. This should help to facilitate a prompt response that would help to maintain continuity of care for the people affected. Through its market shaping activities, authorities should encourage trust between the parties so that effective relationships exist where urgent needs are to be met.

5.38 Service interruptions are often the cause of much anxiety and media attention. Local authorities should have the capacity to react quickly to any media reporting of service interruptions, whether large scale or small, if uncertainty and anxiety are to be minimised.

5.39 Local authorities should consider how to undertake contingency planning most effectively at a local level, to ensure preparedness for possible service interruptions in the future. Service interruptions are often unforeseen and require rapid response. Local authorities should review which service interruptions pose the greatest risk in their locality and consider developing contingency plans in advance, in conjunction with local partners. This may include regional activity with other local authorities in the same area, where risks are better shared between a number of neighbouring authorities.

5.40 Local authorities already plan and manage challenging situations as a matter of course, for example, school closures from public health outbreaks or the impact of extreme weather. The aim should be that contingency planning for social care sits alongside authorities' other emergency planning activities.

5.41 Local authorities may find it useful to consider the Local Government Information Unit guide, Care and continuity: contingency planning for provider failure.

This section includes the following chapters:

6. Assessment and eligibility

This chapter provides guidance on:

This chapter covers:

Assessment

6.1 The assessment and eligibility process is one of the most important elements of the care and support system. The assessment is one of the key interactions between a local authority and an individual, whether an adult needing care or a carer. The process must be person-centred throughout, involving the person and supporting them to have choice and control.

6.2 The assessment process starts from when local authorities begin to collect information about the person, and will be an integral part of the person's journey through the care and support system as their needs change. It 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. It can also help people to understand their strengths and capabilities, and the support available to them in the community and through other networks and services.

6.3 An 'assessment' must always be appropriate and proportionate. It may come in different formats and can be carried out in various ways, including but not limited to:

6.4 People may approach a local authority for an assessment, or be referred by a third party, for a number of reasons. The 'assessment' which they receive must follow the core statutory obligations, but the process is flexible and can be adapted to best fit with the person's needs, wishes and goals. The nature of the assessment will not always be the same for all people, and depending on the circumstances, it could range from an initial contact or triage process which helps a person with lower needs to access support in their local community, to a more intensive, ongoing process which requires the input of a number of professionals over a longer period of time.

6.5 The aim of the assessment is to identify what needs the person may have and what outcomes they are looking to achieve to maintain or improve their wellbeing. The outcome of the assessment is to provide a full picture of the individual's needs so that a local authority can provide an appropriate response at the right time to meet the level of the person's needs. This might range from offering guidance and information to arranging for services to meet those needs. The assessment may be the only contact the local authority has with the individual at that point in time, so it is critical that the most is made of this opportunity.

6.6 The assessment and eligibility process provides a framework to identify any level of need for care and support so that local authorities can consider how to provide a proportionate response at the right time, based on the individual's needs. Prevention and early intervention are placed at the heart of the care and support system, and even if a person has needs that are not eligible at that time, the local authority must consider providing information and advice or other preventative services. Local authorities must also consider the person's own strengths or if any other support might be available in the community to meet those needs. The assessment and eligibility framework provides for ongoing engagement with the person so where they have eligible needs they are involved in the arrangements put in place to deliver the outcomes they want to achieve.

6.7 To provide a comprehensive assessment, the assessor must be appropriately trained. Registered social workers and occupational therapists can provide important support and may be involved in complex assessments which indicate a wide range of needs, risks and strengths that may require a coordinated response from a variety of statutory and community services. Or they may be involved at the point of first contact to advise on whether preventative services would be more appropriate at that time.

6.8 Some of the duties and powers detailed in this chapter apply to children and young carers in transition as well as to adults (for more information on transition, (see chapter 16 on Transition to adult care and support).

The purpose of an assessment

6.9 The purpose of an assessment is to identify the person's needs and how these impact on their wellbeing, and the outcomes that the person wishes to achieve in their day-to-day life. The assessment will support the determination of whether needs are eligible for care and support from the local authority, and understanding how the provision of care and support may assist the adult in achieving their desired outcomes. An assessment must be person-centred, involving the individual and any carer that the adult has, or any other person they might want involved. An adult with care needs could for example ask for their GP or a district nurse to be contacted to provide information relevant to their needs.

6.10 An assessment must seek to establish the total extent of needs before the local authority considers the person's eligibility for care and support and what types of care and support can help to meet those needs. This must include looking at the impact of the adult's needs on their wellbeing and whether meeting these needs will help the adult achieve their desired outcomes. The assessment process also provides the opportunity for local authorities to take a holistic view of the person's needs in the context of their wider support network. Local authorities must consider how the adult, their support network and the wider community can contribute towards meeting the outcomes the person wants to achieve.

6.11 An individual may be unable to request an assessment or may struggle to express their needs. The local authority must in these situations carry out supported decision making, helping the person to be as involved as possible in the assessment, and must carry out a capacity assessment. The requirements of the Mental Capacity Act and access to an Independent Mental Capacity Advocate apply for all those who may lack capacity.

6.12 Eligibility determinations must be made on the basis of an assessment, and cannot be made without having first carried out an assessment. Once an eligibility determination has been made, and the local authority has determined whether it will meet the person's needs (whether eligible or not), it must then carry out a financial assessment if it wishes to charge the adult and confirm that the adult is ordinarily resident in the authority. The eligibility determination cannot take place until an assessment has been completed, except in cases where the local authority is meeting urgent needs. The financial assessment may in practice run parallel to the needs assessment, but it must never influence an assessment of needs. Local authorities must inform individuals that a financial assessment will determine whether or not they pay towards their care and support, but this must have no bearing on the assessment process itself.

Needs assessment

6.13 Local authorities must undertake an assessment for any adult with an appearance of need for care and support, regardless of whether or not the local authority thinks the individual has eligible needs or of their financial situation.

6.14 Wherever an individual expresses a need, or any challenges and difficulties they face because of their condition(s), the local authority should ensure that it has established the impact of that on the individual's day-to-day life. The local authority must also consider whether the individual's needs impact upon their wellbeing beyond the ways identified by the individual. For example where an adult expresses a need regarding their physical condition and mobility, the local authority must establish the impact of this on the adult's desired outcomes; and must also consider whether their need(s) have further consequences on their wider wellbeing such as on their personal health or the suitability of their living accommodation.

6.15 During the assessment, local authorities must consider all of the adult's care and support needs, regardless of any support being provided by a carer. Where the adult has a carer, information on the care that they are providing can be captured during assessment, but it must not influence the eligibility determination. After the eligibility determination has been reached, if the needs are eligible or the local authority otherwise intends to meet them, the care which a carer is providing can be taken into account during the care and support planning stage. The local authority is not required to meet any needs which are being met by a carer who is willing and able to do so, but it should record where that is the case. This ensures that the entirety of the adult's needs are identified and the local authority can respond appropriately if the carer feels unable or unwilling to carry out some or all of the caring they were previously providing.

Carer's assessment

6.16 Where an individual provides or intends to provide care for another adult and it appears that the carer may have any level of needs for support, local authorities must carry out a carer's assessment. Where an adult provides care under contract (for example, for employment) or as part of voluntary work, they should not normally be regarded as a carer, and so the local authority would not be required to carry out the assessment.

6.17 There may be circumstances where the adult providing care, either under contract or through voluntary work, is also providing care for the same adult outside of those arrangements. In such a circumstance, the local authority must consider whether to carry out a carer's assessment for that part of the care they are not providing on a contractual or voluntary basis. There may also be cases where the person providing care does so as voluntary work or under contract, but the nature of their relationship with the person cared for is such that they ought to be considered as a carer within the scope of the Act. The local authority has the power to carry out an assessment in such cases, if it judges that there is reason to do so.

6.18 Carers' assessments must seek to establish not only the carer's needs for support, but also the sustainability of the caring role itself, which includes both the practical and emotional support the carer provides to the adult. Therefore, where the local authority is carrying out a carer's assessment, it must include in its assessment a consideration of the carer's potential future needs for support. Factored into this must be a consideration of whether the carer is, and will continue to be, able and willing to care for the adult needing care. Some carers may need support in recognising issues around sustainability, and in recognising their own needs. This will allow local authorities to make a realistic evaluation of the carer's present and future needs for support and whether the caring relationship is sustainable. Where appropriate these views should be sought in a separate conversation independent from the adult's needs assessment.

6.19 The carer's assessment must also consider the outcomes that the carer wants to achieve in their daily life, their activities beyond their caring responsibilities, and the impact of caring upon those activities. This includes considering the impact of caring responsibilities on a carer's desire and ability to work and to partake in education, training or recreational activities, such as having time to themselves. This impact should be considered in both a short-term immediate sense but also the impact of caring responsibilities over a longer term, cumulative sense.

Refusal of assessment

6.20 An adult with possible care and support needs or a carer may choose to refuse to have an assessment. The person may choose not to have an assessment because they do not feel that they need care or they may not want local authority support. In such circumstances local authorities are not required to carry out an assessment. However, where the local authority identifies that an adult lacks mental capacity and that carrying out a needs assessment would be in the adult's best interests, the local authority is required to do so. The same applies where the local authorities identifies that an adult is experiencing, or is at risk of experiencing, abuse or neglect. Where the adult who is or is at risk of abuse or neglect has capacity and is still refusing an assessment, local authorities must undertake an assessment so far as possible and document this. They should continue to keep in contact with the adult and carry out an assessment if the adult changes their mind, and asks them to do so.

6.21 In instances where an individual has refused a needs or carer's assessment but at a later time requests that an assessment is carried out, the local authority must do so. Additionally, where an individual previously refused an assessment and the local authority establishes that the adult or carer's needs or circumstances have changed, the local authority must consider whether it is required to offer an assessment, unless the person continues to refuse.

6.22 The assessment process starts from when local authorities start to collect information about the person. From their very first contact with the local authority, the person must be given as much information as possible about the assessment process, as early as possible, to ensure a personalised approach to the assessment. This should include detail of what can be expected during the assessment process (such as the format and timescale of assessment, complaints processes and possible access to independent advocacy) and allow them to be as involved in the process as possible. Local authorities must ensure that this information is in an accessible format for those to whom it is provided. For example, Braille may be an appropriate format for many with partial-sightedness or who are blind. Some formats are less accessible for certain groups, such as online platforms for those with particular sensory impairments.

6.23 From this early stage local authorities should consider whether the individual would have substantial difficulty in being involved in the assessment process and if so consider the need for independent advocacy (see chapter 7). Local authorities should also consider whether the person may have difficulty communicating (for example those with Autistic Spectrum Disorder or Profound and Multiple Learning Disabilities) and whether a specialist or interpreter may be needed to support communication. For information on reasonable adjustments, see the Equality Act 2010

6.24 Getting the initial response right can save time and costs on assessment later. Some local authorities have found that putting in place a single access point for all new requests and people currently receiving care can speed up and simplify the process for people approaching the authority; and can also free up time for professional staff to focus on more complex cases.

6.25 Local authorities should not, however, remove people from the process too early. Early or targeted interventions such as universal services, a period of reablement and providing equipment or minor household adaptions can delay an adult's needs from progressing. The first contact with the authority, which triggers the requirement to assess, may lead to a pause in the assessment process to allow such interventions to take place and for any benefit to the adult to be determined. Local authorities must ensure that their staff are sufficiently trained and equipped to make the appropriate judgements needed to steer individuals seeking support towards information and advice, preventative services or a more detailed care and support assessment, or all of these. They must also be able to identify a person who may lack mental capacity and to act accordingly.

6.26 The Care Act provides local authorities with the powers to meet urgent needs where they have not completed an assessment. Authorities may meet urgent need for care and support regardless of the person's ordinary residence. See the Care Act 2014, Section 19. Where an individual with urgent needs approaches or is referred to the local authority, the local authority should provide an immediate response and meet the individual's care and support needs. For example, where an individual's condition deteriorates rapidly or they have an accident, they will need a swift response to ensure their needs are met. In some cases, the appropriate response may be that the local authority will meet the adult's needs. In other cases, an immediate referral may be the best way to meet a person's urgent needs, for example by completing the NHS Continuing Healthcare Fast Track Pathway Tool. Following this initial response, the individual should be informed that a more detailed needs assessment, and any subsequent processes, will follow. Once the local authority has ensured these urgent needs are met, it can then consider details such as the person's ordinary residence and finances.

6.27 Staff who are involved in this first contact must have the appropriate training and should have the benefit of access to professional support from social workers, occupational therapists and other relevant experts as appropriate, to support the identification of any underlying conditions or to ensure that complex needs are identified early and that people are signposted appropriately.

6.28 Local authorities must ensure that any adult with an appearance of care and support needs, and any carer with an appearance of need for support, receives a proportionate assessment which identifies their level of needs. Where appropriate, an assessment may be carried out over the phone or online. In adopting such approaches, local authorities should consider whether the proposed means of carrying out the assessment poses any challenges or risks for certain groups, particularly when assuring itself that it has fulfilled its duties around safeguarding, independent advocacy, and assessing mental capacity. Where there is concern about a person's capacity to make a decision, for example as a result of a mental impairment such as those with dementia, acquired brain injury, learning disabilities or mental health needs, a face-to-face assessment should be arranged. Local authorities have a duty of care to carry out an assessment in a way that enables them to recognise the needs of those who may not be able to put these into words. Local authorities must ensure that assessors have the skills, knowledge and competence to carry out the assessment in question, and this applies to all assessments regardless of the format they take.

6.29 An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs and a consideration of any fluctuation in those needs. Local authorities should inform the individual of an indicative timescale over which their assessment will be conducted and keep the person informed throughout the assessment process.

Supporting the person's involvement in the assessment

6.30 Putting the person at the heart of the assessment process is crucial to understanding the person's needs, outcomes and wellbeing, and delivering better care and support. The local authority must involve the person being assessed in the process as they are best placed to judge their own wellbeing. In the case of an adult with care and support needs, the local authority must also involve any carer the person has (which may be more than one carer), and in all cases, the authority must also involve any other person requested. The local authority should have processes in place, and suitably trained staff, to ensure the involvement of these parties, so that their perspective and experience supports a better understanding of the needs, outcomes and wellbeing.

6.31 Where local authorities identify that an adult is unable to engage effectively in the assessment process independently, it should seek to involve somebody who can assist the adult in engaging with the process and helping them to articulate their preferred outcomes and needs as early as possible. This will include some people with mental impairments who will nevertheless have capacity to engage in the assessment alongside the local authority. They may require assistance whereby the local authority provides an assessment, tailored to their circumstances, their needs and their ability to engage. They should be supported in understanding the assessment process and assisted to make decisions wherever possible.

6.32 Where there is concern about a person's capacity to make a specific decision, for example as a result of a mental impairment such as dementia, acquired brain injury or learning disabilities, then an assessment of capacity should be carried out under the Mental Capacity Act ( MCA). Those who may lack capacity will need extra support to identify and communicate their needs and make subsequent decisions, and may need an Independent Mental Capacity Advocate. The more serious the needs, the more support people may need to identify their impact and the consequences. Professional qualified staff, such as social workers, can advise and support assessors when they are carrying out an assessment with a person who may lack capacity.

Independent advocates

6.33 At the point of first contact, request or referral (including self-referral), local authorities must seek to ascertain whether an individual is able to be involved in their assessment and local authorities must therefore consider whether the individual has substantial difficulty in doing so. Local authorities must consider whether the adult would experience substantial difficulty in any of these 4 areas: understanding the information provided; retaining the information; using or weighing up the information as part of the process of being involved; and communicating the person's views, wishes or feelings. Where a person has substantial difficulty in any of these 4 areas, then they need assistance (see chapter 7, on independent advocacy).

6.34 If a person does have substantial difficulty, the local authority must find someone appropriate and independent to support and represent the person, for the purpose of facilitating their involvement. This should be done as early as possible in the assessment process so that the individual's involvement can be supported throughout all stages of the process. Individuals may require help to understand information provided, assistance in weighing up the information, and support in communicating their wishes and preferences. Where there is a family member or friend who is willing and able to facilitate the person's involvement effectively, and who is acceptable to the individual and judged appropriate by the local authority, they may be asked to support the individual in the assessment process. Where there is no one thought to be appropriate for this role - either because there is no family member or friend willing and available, or if the individual does not want them to be a part of the assessment - the local authority must appoint an independent advocate.

Appropriate and proportionate assessments

6.35 The assessment must be person-centred throughout. Local authorities must find out the extent to which the person being assessed wishes to be involved in the assessment and should meet those wishes as far as is practicable do so, as the person is best placed to understand the impact of their condition(s) on their outcomes and wellbeing.

6.36 An assessment should be a collaborative process and it is therefore essential that the process is transparent and understandable so that the individual is able to:

6.37 To support the person's involvement, the local authority should establish the individual's communication needs and seek to adapt the assessment process accordingly. In doing so local authorities must provide information about the assessment process in an accessible format.

6.38 To help the adult with needs for care and support, or the carer, prepare for the assessment the local authority should provide in advance, and in an accessible format, the list of questions to be covered in the assessment. This will help the individual or carer prepare for their assessment and think through what their needs are and the outcomes they want to achieve.

6.39 Some people being assessed may have severe communication needs, such as people with Profound and Multiple Learning Disabilities, Autistic Spectrum Disorder, or those who are deaf or blind. Such individuals may require the support of a specialist interpreter to help them to communicate and engage in the assessment.

6.40 Local authorities should also consider the impact of the assessment process itself on the individual's condition(s). People may feel uncertain and worried about what an assessment involves and may find the process itself to be strenuous. Local authorities should therefore give consideration to the preferences of the individual with regards to the timing, location and medium of the assessment.

6.41 The assessment should be designed to reflect the wishes of the person being assessed, taking into account their presenting need and their circumstances. An assessment process which benefits an individual in one instance may not necessarily be as effective for another. Local authorities should recognise this and in order to maintain a person-centred approach, local authorities must ensure that assessments are flexible to each individual case.

6.42 In carrying out a proportionate assessment local authorities must have regard to:

a) The person's wishes and preferences and desired outcomes. For example, an individual who pays for their own care may wish to receive local authority support with accessing a particular service, but may not want the same interaction with the authority as someone who wants greater support.

b) The severity and overall extent of the person's needs. For example, an individual with more complex needs will require a more detailed assessment, potentially involving a number of professionals. A person with lower needs may require a less intensive response.

c) The potential fluctuation of a person's needs, both adults and carers. For example, where the local authority is aware that an adult's needs fluctuate over time, the assessment carried out at a particular moment may take into account the adult's history to get a complete picture of the person's needs.

6.43 Each local authority may decide to use an assessment tool to help collect information about the adult or carer and details of their wishes and feeling and their desired outcomes and needs. Where a local authority has decided that a person does not need a more detailed assessment, it should consider which elements of the assessment tool it should use and which are not necessary. When carrying out a proportionate assessment the assessor should continue to look for the appearance of further needs which may be the result of an underlying condition. Where the assessor believes that the person's presenting needs may be as a result of or a part of wider needs then the local authority should undertake a more detailed assessment and refer the person to other services such as housing or the NHS if necessary. For example, the Brain Injury Rehabilitation Trust has produced the Brain Injury Needs Indicator, which is a tool that can be used as part of the assessment to help identify deficits of people with a suspected or diagnosed acquired brain injury.

Supported self-assessment

6.44 A supported self-assessment is an assessment carried out jointly by the adult with care and support needs or carer and the local authority. It places the individual in control of the assessment process to a point where they themselves complete their assessment form. Whilst it is the person filling in the assessment form, the duty to assess the person's needs, and in doing so ensure that they are accurate and complete, remains with the local authority. Local authorities can offer individuals a supported self-assessment, and must do so if the adult or carer is able, willing and has capacity to undertake it. If the person does not wish to self-assess, then the local authority must undertake an assessment following one of the other processes outlined above.

6.45 In order to support the person in carrying out a supported self-assessment, the local authority must give them any relevant information it has either about the person themselves or, for a carer's self-assessment, about the individual they care for. This is so that the person undertaking the assessment has a full picture of their care and support history and is equipped with the same information an assessor would have when undertaking an assessment. Before sharing any information, the local authority must ensure that the person consents to that information being shared. If the person lacks capacity, information must only be shared where the local authority is satisfied that doing so is in the person's best interests. In the case of a young carer, the local authority must also consider whether it is appropriate to share the information about the person the young carer cares for (see chapter 16).

6.46 Once the person has completed the assessment, the local authority must ensure that it is an accurate and complete reflection of the person's needs, outcomes, and the impact of needs on their wellbeing. The process of a supported self-assessment begins with first contact and is only complete when this assurance has been secured. Until the process of assurance is complete and the local authority has ensured that it is accurate, it will not have discharged its duties under section 9 of the Care Act. Where the person carrying out a supported self-assessment jointly with the local authority requires a specialist, for example people who are deafblind, then the professional leading this assurance process must be seen as the 'assessor' and so must have specific training and expertise relating to the individual's needs. When assuring itself that a self-assessment is comprehensive a local authority should not look to repeat the full assessment process again.

6.47 In assuring self-assessments local authorities may consider it useful to seek the views of those who are in regular contact with the person self-assessing, such as their carer(s) or other appropriate people from their support network, and any professional involved in providing care such as a housing support officer, a GP, a treating clinician, a district nurse, a rehabilitation officer or relevant prison staff. In doing this, the local authority should first seek the person's consent. This may be helpful in allowing local authorities to build an understanding of the individual's desires, outcomes, needs, and the impact on their wellbeing.

6.48 The person should be asked to complete a similar assessment questionnaire that the authority uses in their needs or carers' assessments, which must assess the person's needs, their outcomes, and the impact of their needs on their wellbeing. The assessment questionnaire can be the same as the one used by local authority assessors or adapted to cover the same questions but made easier for the person to use and understand. Local authorities must also ensure they fulfil other relevant duties under the Act when supporting and assuring a person's self-assessment, such as those around independent advocacy. If at any point the local authority suspects that a person is experiencing, or is at risk of, abuse and neglect, it must begin a safeguarding enquiry (see chapter 14).

6.49 Before offering a supported self-assessment local authorities must ensure that the individual has capacity to fully assess and reflect their own needs. Local authorities must establish the individual's mental capacity in accordance with the Mental Capacity Act.

6.50 If a local authority considers a person may lack capacity to understand and carry out a self-assessment, they must carry out a capacity assessment. If this shows that the person lacks the capacity to carry out a self-assessment, then the self-assessment should not be offered.

6.51 Where local authorities have established that the adult has capacity to undertake a self-assessment but experiences substantial difficulty in understanding, retaining and using the relevant information in relation to their self-assessment, they may wish to involve their carer or any other member of their family or support network in their self-assessment. Where the adult does not have the support required from a carer or family member who is willing and able to facilitate the person's involvement effectively and who is acceptable to the individual and judged appropriate by the local authority, the local authority must provide an independent advocate to assist them in their self-assessment. When a person who would otherwise receive a specialist assessment (for example, someone who is deafblind) chooses to undertake a self-assessment, the local authority must involve a person who has specific training and expertise when assuring that the person's assessment taken as a whole reflects the overall needs of the individual concerned.

6.52 Local authorities should ensure that self-assessments are completed in suitable time periods. If there is a delay in the person returning the self-assessment form the authority should assure itself that this is not because the person's condition(s) have deteriorated and is unable to complete the self-assessment.

6.53 The local authority, once it has assured itself that the self-assessment has accurately captured the person's needs, must make an eligibility determination. Where appropriate this may include taking into account the person's own view. Although the local authority and the individual are working jointly to ascertain needs and eligibility, the final decision regarding eligibility will rest with the local authority. In all cases, the authority must inform the person of their eligibility judgement and why the local authority has reached the eligibility determination that it has. It must also discuss what needs are eligible and discuss how these might be met. Where the authority determines that the person has needs that are not eligible it must provide advice and information on what services are available in the community that can support the person in meeting those needs.

Safeguarding

6.54 Where a person is at risk of abuse or neglect, it is important that local authorities act swiftly and put in place an effective response. When carrying out an assessment local authorities must consider the impact of the adult's needs on their wellbeing. If it appears to local authorities that the person is experiencing, or at risk of, abuse or neglect, they must carry out a safeguarding enquiry and decide with the adult in question what action, if any, is necessary and by whom (see chapter 14).

6.55 The decision to carry out a safeguarding enquiry does not depend on the person's eligibility, but should be taken wherever there is reasonable cause to think that the person is experiencing, or is at risk of, abuse or neglect. Where this is the case, a local authority must carry out (or request others to carry out) whatever enquiries it thinks are necessary in order to decide whether any further action is necessary.

6.56 Where the actions required to protect the adult can be met by local authorities, they should take appropriate action. In some cases, safeguarding enquiries may result in the provision of care and support (under either section 18 or 19 of the Care Act), or the provision of preventative services (under section 2) or information and advice (under section 4). In the majority of cases the response will involve other agencies, for example, a safeguarding enquiry may result in referrals to the police, a change of accommodation, or action by CQC.

6.57 Where the adult has care and support needs, local authorities must continue to carry out a needs assessment and determine whether they have eligible needs, and if so, how these will be met. The assessment for care and support should run parallel to the safeguarding enquiry and the enquiry should not disrupt the assessment process or the local authority meeting eligible needs.

Fluctuating needs

6.58 As the condition(s) of the individual at the time of the assessment may not be entirely indicative of their needs more generally, local authorities must consider whether the individual's current level of need is likely to fluctuate and what their on-going needs for care and support are likely to be. This is the case both for short-term fluctuations, which may be over the course of the day, and longer term changes in the level of the person's needs. In establishing the on-going level of need local authorities must consider the person's care and support history over a suitable period of time, both the frequency and degree of fluctuation. The local authority may also take into account at this point what fluctuations in need can be reasonably expected based on experience of others with a similar condition. It is important to recognise the benefit of adopting this comprehensive approach to assessment as the consideration of an individual's wider wellbeing may allow local authorities to provide types of care and support, or information and advice which delay or prevent the development of further needs in the future.

6.59 The assessment should also include a consideration of the individual's wider care and support needs. This may include types of care and support the individual has received in the past and their general medical history, which may be indicative of their current care and support needs.

Focusing on preventing needs

6.60 The assessment and eligibility framework should be a key element of any prevention strategies authorities put in place. It is during the assessment where local authorities can identify needs that could be reduced, or where escalation could be delayed, and help people improve their wellbeing by providing specific preventive services, or information and advice on other universal services available locally. Early interventions can prevent or delay a person's needs from progressing.

6.61 In parallel with assessing a person's needs, local authorities must consider the benefits of approaches which delay or prevent the development of needs in individuals. This applies to both people with current needs that may be reduced or met through available universal services in the community, and those without needs who may otherwise require care and support in the future. This could include directing people to services such as community support groups which ensure that people feel supported, including an ability to participate in their local community. It may also include helping the person to access services which the local authority provides as part of its universal offer on prevention. Local authorities can also support the person in understanding other types of support available to them, such as within their own support networks, for example to seek to promote access to appropriate employment, education or training, which can be an effective way of maintaining independence. Such interventions at an early stage will help to sustain the independence and wellbeing of people (see chapter 2 on prevention and chapter 3 on information and advice).

6.62 Where the local authority judges that the person may benefit from such types of support, it should take steps to support the person to access those services. The local authority may 'pause' the assessment process to allow time for the benefits of such activities to be realised, so that the final assessment of need (and determination of eligibility) is based on the remaining needs which have not been met through such interventions. For example, if the local authority believes that a person may benefit from a short-term reablement service which is available locally, it may put that in place and complete the assessment following the provision of that service.

Considering the person's strengths and capabilities

6.63 At the same time as carrying out the assessment, the local authority must consider what else other than the provision of care and support might assist the person in meeting the outcomes they want to achieve. In considering what else might help, authorities should consider the person's own strengths and capabilities, and what support might be available from their wider support network or within the community to help. Strengths-based approaches might include co-production of services with people who are receiving care and support to foster mutual support networks. Encouraging people to use their gifts and strengths in a community setting could involve developing residents' groups and appropriate training to support people in developing their skills.

6.64 Local authorities might also consider the ways a person's cultural and spiritual networks can support them in meeting needs and building strengths, and explore this with the person. Any suggestion that support could be available from family and friends should be considered in light of their appropriateness, willingness and ability to provide any additional support and the impact on them of doing so. It must also be based on the agreement of the adult or carer in question.

Considering the person's strengths: a case study

Whole family approach

6.65 The intention of the whole family approach is for local authorities to take a holistic view of the person's needs and to identify how the adult's needs for care and support impact on family members or others in their support network.

6.66 During the assessment the local authority must consider the impact of the person's needs for care and support on family members or other people the authority may feel appropriate. This will require the authority to identify anyone who may be part of the person's wider network of care and support.

6.67 In considering the impact of the person's needs on those around them, the local authority must consider whether or not the provision of any information and advice would be beneficial to those people they have identified. For example, this may include signposting to any support services in the local community.

6.68 The local authority must also identify any children who are involved in providing care. The authority may become aware that the child is carrying out a caring role through the assessment of the person needing care or their carer, or informed through family members or a school. Identification of a young carer in the family should result in an offer of a needs assessment for the adult requiring care and support and, where appropriate, the local authority must consider whether the child or young carer should be referred for a young carer's assessment or a needs assessment under the Children Act 1989, or a young carer's assessment under section 63 of the Care Act. Local authorities should ensure that adults' and children's care and support services work together to ensure the assessment is effective - for example by sharing expertise and linking processes.

6.69 When carrying out an adult's or carer's assessment, if it appears that a child is involved in providing care the local authority must consider:

the impact of the person's needs on the young carer's wellbeing, welfare, education and development

whether any of the caring responsibilities the young carer is undertaking are inappropriate

6.70 An assessment should take into account the parenting responsibilities of the person as well as the impact of the adult's needs for care and support on the young carer.

6.71 Local authorities must also consider whether any of the caring tasks the child is undertaking are inappropriate. They should consider how supporting the adult with needs for care and support can prevent the young carer from undertaking excessive or inappropriate care and support responsibilities. A young carer becomes vulnerable when their caring role risks impacting upon their emotional or physical wellbeing or their prospects in education and life. This might include:

6.72 Inappropriate caring responsibilities should be considered as anything which is likely to have an impact on the child's health, wellbeing or education, or which can be considered unsuitable in light of the child's circumstances and may include:

6.73 When a local authority is determining whether the tasks a child carries out are inappropriate, it should also take into account the child's own view wherever appropriate.

Combining assessments

6.74 Local authorities may combine an assessment of an adult needing care and support or of a carer with any other assessment it is carrying out either of that person or another where both the individual and carer agree, and the consent condition is met in relation to a child. This will also avoid the authority carrying out 2 separate assessments when the 2 assessments are intrinsically linked. If either of the individuals concerned does not agree to a combined assessment, then the assessments must be carried out separately.

Integrated assessments

6.75 People may have needs that are met by various bodies. Therefore, a holistic approach to assessment which aims to bring together all of the person's needs may need the input of different professionals such as adult care and support, children's services, housing, experts in the voluntary sector, relevant professionals in the criminal justice system, health or mental health professionals.

6.76 A local authority may carry out a needs or carer's assessment jointly with another body carrying out any other assessment in relation to the person concerned, provided that person agrees. In doing so, the authority may integrate or align assessment processes in order to better fit around the needs of the individual. An integrated approach may involve working together with relevant professionals on a single assessment. It may also include putting processes in place to ensure that the person is referred for other assessments such as an assessment for after-care needs under the Mental Health Act 1983. In some settings, for example in prisons, local authorities should engage relevant professionals early to ensure assessors are prepared for carrying out an assessment in that environment.

6.77 Where more than one agency is assessing a person, they should all work closely together to prevent that person having to undergo a number of assessments at different times, which can be distressing and confusing.

6.78 Where a person has both health and care and support needs, local authorities and the NHS should work together effectively to deliver a high quality, coordinated assessment. To achieve this, local authorities should:

shape the process around the person, involving the person and considering their experience when coordinating an integrated assessment

work with other professionals to ensure the person's health and care services are aligned. This will require flexibility of systems where possible, for example when sharing information. It will also be strengthened by a culture of common values and objectives at frontline level - joint visits can be helpful here

link together various care and support plans to set out a single, shared care pathway, for example when following the Care Programme Approach for people with a severe mental disorder who need multi-agency support or intensive intervention, under the direction of a named care coordinator. See chapter 34 of the revised Code of Practice Mental Health Act 1983. A multi-agency approach is particularly important where people are enrolled on the Proactive Care Programme, which was introduced through the Avoiding Unplanned Emergency Admissions Enhanced Service in the 2014 to 2015 GP Contract.

6.79 The local authority may carry out the care and support assessment jointly with any other assessment, and can also undertake the other assessment on behalf of the other body, where this is agreed. Where an assessment involves a body from outside of the local authority, the local authority should provide any resources or facilities which may be required to carry out the assessment. Sharing resources may include the provision of facilities or relative information relating to the person being assessed. (See chapters 15-18 on Integration and Partnership Working).

NHS Continuing Healthcare

6.80 Where it appears that a person may be eligible for NHS Continuing Healthcare ( NHS CHC), local authorities must notify the relevant Clinical Commissioning Group ( CCG). NHS CHC is a package of on-going care that is arranged and funded solely by the NHS where the individual has been found to have a 'primary health need' as set out in the national framework for NHS Continuing Healthcare and NHS-funded nursing care. Such care is provided to individuals aged 18 or over, to meet needs that have arisen as a result of disability, accident or illness. Eligibility for NHS CHC places no limits on the settings in which the package of support can be offered or on the type of service delivery.

6.81 Whilst local authorities have a duty to carry out an assessment where a person has an appearance of needs and a duty to meet eligible needs, local authorities cannot arrange services that are the responsibility of the NHS (for example, care provided by registered nurses and services that the NHS has to provide because the individual is eligible for NHS CHC). However, the local authority may provide or arrange healthcare services where they are incidental or ancillary to doing something else to meet needs for care and support and the service or facility in question is of a nature that a local authority could be expected to provide. Ultimate responsibility for arranging and monitoring the services required to meet the needs of those who qualify for NHS CHC rests with the NHS.

6.82 Individuals may require care and support provided by their local authority and/or services arranged by CCGs. Local authorities and CCGs therefore have a responsibility to ensure that the assessment of eligibility for care and support and CHC respectively take place in a timely and consistent manner. If, following an assessment for NHS CHC, a person is not found to be eligible for NHS CHC, the NHS may still have a responsibility to contribute to that person's health needs - either by directly commissioning services or by part-funding the package of support. Where a package of support is commissioned or funded by both a local authority and a CCG, this is known as a joint package of care. A joint package of care could include NHS-funded nursing care and other NHS services that are beyond the powers of a local authority to meet. The joint package could also involve the CCG and the local authority both contributing to the cost of the care package, or the CCG commissioning part of the package. Joint packages of care may be provided in a nursing or care home, or in a person's own home, and could be by way of joint personal budget.

6.83 Local authorities and CCGs in each local area must agree a local disputes resolution process to resolve cases where there is a dispute between them about eligibility for NHS CHC, the apportionment of funding in joint funded care and support packages, or the operation of refunds guidance. Disputes should not delay the provision of the care package, and the process should make clear how funding will be provided pending resolution of the dispute. Where disputes relate to local authorities and CCGs in different geographical areas, the disputes resolution process of the responsible CCG should normally be used in order to ensure resolution in a robust and timely manner. This should include agreement on how funding will be provided during the dispute, and arrangements for reimbursement to the agencies involved once the dispute is resolved.

Roles and responsibilities

6.84 Assessments can be carried out by a range of professionals including registered social workers, occupational therapists and rehabilitation officers. Registered social workers and occupational therapists are considered to be 2 of the key professions in adult care and support. Local authorities should consider how adults who need care, carers, and assessors have access to registered social care practitioners, such as social workers or occupational therapists.

Training

6.85 It is essential that the assessment is carried out to the highest quality. The assessment must: identify the person's needs, outcomes and how these impact on their wellbeing; consider the person's strengths and capabilities; and consider what universal services might help the person improve their wellbeing. Local authorities must ensure that their staff have the required skills, knowledge and competence to undertake assessments and that this is maintained. This applies no matter how the assessment is carried out, including first contact, any assessment over the phone or online, or self-assessments where the person carrying out the assurance will need to have the appropriate training.

6.86 Local authorities must ensure that assessors are appropriately trained and competent whenever they carry out an assessment. This means ensuring that assessors undergo regular, up-to-date training on an ongoing basis. The training must be appropriate to the assessment, both the format of assessment and the condition(s) and circumstances of the person being assessed. They must also have the skills and knowledge to carry out an assessment of needs that relate to a specific condition or circumstances requiring expert insight, for example when assessing an individual who has autism, learning disabilities, mental health needs or dementia. This training must be maintained throughout their career. As part of maintaining their registration, social workers and occupational therapists are required to evidence their Continuing Professional Development.

6.87 When assessing particularly complex or multiple needs, an assessor may require the support of an expert to carry out the assessment, to ensure that the person's needs are fully captured. Local authorities should consider whether additional relevant expertise is required on a case-by-case basis, taking into account the nature of the needs of the individual, and the skills of those carrying out the assessment. The local authority must ensure that the person is able to be involved as far as possible, for example by providing an interpreter where a person has a particular condition affecting communication - such as autism, blindness, or deafness. See the Equality Act for necessary provisions around reasonable adjustments.

6.88 Where the assessor does not have the necessary knowledge of a particular condition or circumstance, they must consult someone who has relevant expertise. This is to ensure that the assessor can ask the right questions relating to the condition and interpret these appropriately to identify underlying needs. A person with relevant expertise can be considered as somebody who, either through training or experience, has acquired knowledge or skill of the particular condition or circumstance. Such a person may be a doctor or health professional, or an expert from the voluntary sector, but there is no obligation for the local authority to source an expert from an outside body if the expertise is available in house.

6.89 The Department of Health has published guidance for certain groups of adults that refer to their assessment for care and support. Two specific areas are for people who are deafblind and people with autism and these pieces of guidance should be read with this guidance. Think Autism 2014, the April 2014 update to Fulfilling and Rewarding Lives, the strategy for adults with autism in England (2010), sets out that local authorities should:

6.90 The Care Act strengthens this guidance in relation to assessors having specialised training to assess an adult with autism. The Act places a legal requirement on local authorities that all assessors must have the skills, knowledge and competence to carry out the assessment in question. Where an assessor does not have experience in a particular condition (such as autism, learning disabilities, mental health needs or other conditions), they must consult someone with relevant experience. This is so that the person being assessed is involved throughout the process and their needs, outcomes and the impact of needs on their wellbeing are all accurately identified.

Assessment for people who are deafblind

6.91 Local authorities must ensure that an expert is involved in the assessment of adults who are deafblind, including where a deafblind person is carrying out a supported self-assessment jointly with the authority. People are regarded as deafblind 'if their combined sight and hearing impairment causes difficulties with communication, access to information and mobility. This includes people with a progressive sight and hearing loss' (Think Dual Sensory, Department of Health, 1995).

6.92 During an assessment if there is the appearance of both sensory impairments, even if when taken separately each sensory impairment appears relatively mild, the assessor must consider whether the person is deafblind as defined above. If a person is deafblind, this must trigger a specialist assessment. This specialist assessment must be carried out by an assessor or team that has training of at least QCF or OCN level 3, or above where the person has higher or more complex needs.

6.93 Training and expertise should in particular include; communication, one-to-one human contact, social interaction and emotional wellbeing, support with mobility, assistive technology and rehabilitation. The type and degree of specialism required should be judged on a case by case basis, according to the extent of the person's condition and their communication needs. Local authorities should also recognise that deafblindness is a dual sensory condition which requires a knowledge and understanding of the 2 respective conditions in unison, which cannot be replicated by taking an individual approach to both senses.

6.94 The combined loss of sight and hearing can have a significant impact upon the individual even where they are not profoundly deaf and totally blind, as it is the impact of one impairment upon the other which causes difficulties. Deafblindness can have significant impact on the adult's independence and their ability to achieve their desired outcomes. In particular deafblindness may have impact on the adult's:

6.95 Local authorities should recognise that adults may not define themselves as deafblind. Instead they may describe their vision and hearing loss in terms which indicate that they have significant difficulty in their day-to-day lives. The assessment must therefore take the initiative to establish maximum possible communication with the adult to ensure that individuals are as fully engaged as possible and have the opportunity to express their wishes and desired outcomes. This is particularly important where the person is carrying out a supported self-assessment jointly with the local authority. The person ensuring that the self-assessment is a complete and accurate reflection of needs must have specific training and expertise that will enable maximum possible communication and an accurate and complete assessment.

6.96 Whilst the person carrying out the assessment must have the suitable training and expertise, it may not be possible for them to carry out the assessment without an interpreter, for instance where the adult uses sign language. Therefore, where necessary a qualified interpreter with training appropriate for the deafblind adult's communication should be used. It is not normally appropriate to use a family member or carer as an interpreter, though sometimes this is appropriate, for instance where the adult's communication is idiosyncratic or personal to them and would only be understood by those close to them. This should only take place where the adult agrees or - if they lack capacity - where it is in their best interests.

6.97 The assessment should take into account both the current and future needs of the person being assessed, particularly where the adult's deafblindness is at risk of deteriorating. In such cases the adult may benefit from learning alternative forms of communication before their condition has deteriorated to a point where their current or preferred form of communication is no longer suitable.

Record keeping

6.98 Following their assessment, individuals must be given a record of their needs or carer's assessment. A copy must also be shared with anybody else that the individual requests the local authority to share a copy with. Where an independent advocate, an Independent Mental Capacity Advocate or an Independent Mental Health Advocate is involved in supporting the individual, the local authority should keep the advocate informed so that they can support the person to understand the outcome of the assessment and its implications.

Delegating assessments

6.99 Local authorities can delegate the majority of their care and support functions, including assessment (see chapter 18). In doing so they must ensure that the body carrying out an assessment complies with all the requirements and fulfils all relevant duties under the Act and regulations (such as providing an independent advocate - (see chapter 7). Anything done by the body carrying out an assessment is treated as if done by the local authority. In respect of duties surrounding non-delegated functions, such as safeguarding (see chapter 14), local authorities must have appropriate processes in place to ensure they fulfill these functions, for example agreeing with the body that the local authority is notified if a safeguarding issue is spotted.

Eligibility

6.100 The national eligibility criteria set a minimum threshold for adult care and support needs and carer support needs which local authorities must meet. 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.

6.101 The introduction of a national eligibility threshold provides more transparency on what level of need is eligible. More clarity will support authorities in deciding whether the earlier provision of information and advice or preventative services would delay a person from developing needs which meet the eligibility criteria or whether longer-term care and support might be needed. It should also help the person needing care or their carer to think more broadly about what support might be available in the local community or through their support network to meet their needs and support the outcomes they want to achieve.

What is the national eligibility threshold for adults needing care?

6.102 The eligibility threshold for adults with care and support needs is set out in the Care and Support (Eligibility Criteria) Regulations 2015 (the 'Eligibility Regulations'). The threshold is based on identifying how a person's needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing.

6.103 In considering whether an adult with care and support needs has eligible needs, local authorities must consider whether:

An adult's needs are only eligible where they meet all 3 of these conditions.

Interpreting the eligibility criteria

6.104 The adult's needs arise from or are related to a physical or mental impairment or illness. The first condition that local authorities must be satisfied about is that the adult's needs for care and support are due to a physical or mental impairment or illness and that they are not caused by other circumstantial factors. Local authorities must consider at this stage if the adult has a condition as a result of either physical, mental, sensory, learning or cognitive disabilities or illnesses, substance misuse or brain injury. The authority should base their judgment on the assessment of the adult and a formal diagnosis of the condition should not be required.

As a result of the adult's needs, the adult is unable to achieve 2 or more of the outcomes set out in the regulations

6.105 The second condition that authorities must consider is whether the adult is 'unable' to achieve 2 or more of the outcomes set out in the regulations. Authorities must also be aware that the regulations provide that 'being unable' to achieve an outcome includes any of the following circumstances, where the adult:

6.106 The Eligibility Regulations set out a range of outcomes. Local authorities must consider whether the adult is unable to achieve 2 or more of these outcomes when making the eligibility determination. The following section of the guidance provides examples of how local authorities should consider each outcome set out in the Eligibility Regulations (which do not constitute an exhaustive list) when determining the adult's eligibility for care and support:

a) Managing and maintaining nutrition - local authorities should consider whether the adult has access to food and drink to maintain nutrition, and that the adult is able to prepare and consume the food and drink.

b) Maintaining personal hygiene - local authorities should, for example, consider the adult's ability to wash themselves and launder their clothes.

c) Managing toilet needs - local authorities should consider the adult's ability to access and use a toilet and manage their toilet needs.

d) Being appropriately clothed - local authorities should consider the adult's ability to dress themselves and to be appropriately dressed, for instance in relation to the weather to maintain their health.

e) Being able to make use of the home safely - local authorities should consider the adult's ability to move around the home safely, which could for example include getting up steps, using kitchen facilities or accessing the bathroom. This should also include the immediate environment around the home such as access to the property, for example steps leading up to the home.

f) Maintaining a habitable home environment - local authorities should consider whether the condition of the adult's home is sufficiently clean and maintained to be safe. A habitable home is safe and has essential amenities. An adult may require support to sustain their occupancy of the home and to maintain amenities, such as water, electricity and gas.

g) Developing and maintaining family or other personal relationships - local authorities should consider whether the adult is lonely or isolated, either because their needs prevent them from maintaining the personal relationships they have or because their needs prevent them from developing new relationships.

h) Accessing and engaging in work, training, education or volunteering - local authorities should consider whether the adult has an opportunity to apply themselves and contribute to society through work, training, education or volunteering, subject to their own wishes in this regard. This includes the physical access to any facility and support with the participation in the relevant activity.

i) Making use of necessary facilities or services in the local community including public transport and recreational facilities or services - local authorities should consider the adult's ability to get around in the community safely and consider their ability to use such facilities as public transport, shops or recreational facilities when considering the impact on their wellbeing. Local authorities do not have responsibility for the provision of NHS services such as patient transport, however they should consider needs for support when the adult is attending healthcare appointments.

j) Carrying out any caring responsibilities the adult has for a child - local authorities should consider any parenting or other caring responsibilities the person has. The adult may for example be a step-parent with caring responsibilities for their spouse's children.

As a consequence there is, or there is likely to be, a significant impact on the adult's wellbeing

6.107 The third condition that must be met is that local authorities must consider whether the adult's needs and their inability to achieve the outcomes above cause or risk causing a significant impact on their wellbeing. The meaning of wellbeing is set out in Section 1 of the Care Act and more detail is described in chapter 1 of this guidance.

6.108 Local authorities must determine how the adult's inability to achieve the outcomes above impacts on their wellbeing. Where the adult is unable to achieve more than one of the outcomes, the local authority does not need to consider the impact of each individually, but should consider whether the cumulative effect of being unable to achieve those outcomes is one of a 'significant impact on wellbeing'. In doing so, local authorities should also consider whether:

the adult's inability to achieve the outcomes above impacts on at least one of the areas of wellbeing (as described in Section 1 of the Act and chapter 1 of this guidance) in a significant way

the effect of the impact on a number of the areas of wellbeing mean that there is a significant impact on the adult's overall wellbeing

6.109 The term 'significant' is not defined by the regulations, and must therefore be understood to have its everyday meaning. Local authorities will have to consider whether the adult's needs and their consequent inability to achieve the relevant outcomes will have an important, consequential effect on their daily lives, their independence and their wellbeing.

6.110 In making this judgment, local authorities should look to understand the adult's needs in the context of what is important to him or her. Needs may affect different people differently, because what is important to the individual's wellbeing may not be the same in all cases. Circumstances which create a significant impact on the wellbeing of one individual may not have the same effect on another.

6.111 The table below illustrates the interplay of the 3 conditions above, the outcomes listed in the eligibility regulations and the wellbeing principle, which is broken down into areas of wellbeing in (see chapter 1: Promoting wellbeing).

Eligibility decision process

1. Needs

The adult's needs arise from or are related to a physical or mental impairment or illness.

2. Outcomes

As a result of the needs, the adult is unable to achieve 2 or more of the following:

1. a) managing and maintaining nutrition

2. b) maintaining personal hygiene

3. c) managing toilet needs

4. d) being appropriately clothed

5. e) maintaining a habitable home environment

6. f) being able to make use of the home safely

7. g) developing and maintaining family or other personal relationships

8. h) accessing and engaging in work, training, education or volunteering

9. i) making use of necessary facilities or services in the local community including public transport and recreational facilities or services

10. j) carrying out any caring responsibilities the adult has for a child

3. Wellbeing

As a consequence, there is or is likely to be a significant impact on the adult's wellbeing, including the following:

1. a) personal dignity (including treatment of the individual with respect)

2. b) physical and mental health and emotional wellbeing

3. c) protection from abuse and neglect

4. d) control by the individual over day-to-day life (including over care and support provided and the way it is provided)

5. e) participation in work, education, training or recreation

6. f) social and economic wellbeing

7. g) domestic, family and personal relationships

8. h) suitability of living accommodation

9. i) the individual's contribution to society

6.112 The case studies which follow demonstrate examples of how eligibility determinations may be made. The purpose of these case studies is to illustrate eligibility on the basis of significant impact on wellbeing where the person has needs caused by a physical or mental impairment or illness which mean they are unable to achieve 2 or more outcomes specified in the Eligibility Regulations. Significant impact on wellbeing is personal, so although 2 people are in similar circumstances, the impact on their wellbeing is different.

Case Study 1: John (eligible)

John is 32 and has been referred by his mother for an assessment, who is concerned for John and his future. John is unemployed and lives with his mother and she is getting to an age where she realises that she might not be able to provide the same level of care and support for her son as she has done so far. John is able to manage his own personal care, but his mother does all the housework for both of them. John feels increasingly isolated and will not leave the house without his mother. It is important to John that he is intellectually stimulated and there is a chess club nearby which he would like to join, but John does not feel confident about this due to his anxiety in social situations.

Needs

Adult on the autistic spectrum.

Outcomes

John has severe difficulties socialising and co-operating with other people.

He only has transactional exchanges and cannot maintain eye contact. John knows that others feel uneasy around him, and spends a lot of his time alone. As a result, John is unable to achieve the following outcomes: Developing and maintaining family or other personal relationships and making use of necessary facilities and services in the community.

Impact on wellbeing

John is too anxious to initiate developing friendships on his own although he would like to and he feels lonely and depressed most of the time. His nervousness also affects his ability to take advantage of facilities in the community, which could help him feel less lonely. Feeling anxious and lonely has a significant impact on his wellbeing

Decision: Eligible

Next Actions

John's local authority thinks John's needs are eligible. Both John and the local authority agree that the most effective way of meeting John's needs is to develop his confidence to join the chess club. John uses his personal budget to pay for a support worker to accompany him to an autism social skills group, and to the chess club and to travel with him on the bus to get there.

John's local authority notes that John's mother could need support too and offers her a carer's assessment.

Case study 2: Dave (not eligible)

Dave is 32 and has been referred by his mother for an assessment, who is concerned for Dave and his future. Dave lives with his mother and she is getting to an age where she realises that she might not be able to provide the same level of care and support for her son as she has done so far.

Dave is able to manage his own personal care, but his mother does all the housework for both of them. Dave also works, but would like to get a job that is a better match for his intellectual abilities as his current job does not make the most of his numerical skills. Dave's social contact is mainly online because he feels more comfortable communicating this way and he spends a lot of time in his room on his computer.

Category

Adult on the autistic spectrum.

Needs

Dave struggles severely in social situations leading to difficulties accessing work and cooperating with other people. He only has transactional exchanges with others and cannot maintain eye contact. Dave knows that others feel uneasy around him and spends a lot of his time alone.

Impact on wellbeing

Dave is not in ideal employment, but has access to and is engaged in work. This has some impact on his wellbeing but not to a significant extent.

Dave prefers to socialise with people online. It emerges from conversations with Dave that he has access to those personal relationships that he considers essential. Dave is contributing to society, has contact with others, is in employment and is able to look after himself.

Decision: Not Eligible

Dave has difficulties doing some of the things that many other people would think should be a natural part of daily living and he is unable to participate in recreational activities in a conventional sense. Those aspects of his wellbeing that are affected by the needs caused by his autism are not so significantly affected that Dave's overall wellbeing is at risk.

The local authority decides that Dave's needs are not eligible, because they do not have a significant effect on his wellbeing despite his mother's concerns.

Next Actions

The local authority records Dave's assessment and sends him a copy. They include information about a local autism support group. Dave's local authority notes that Dave's mother could well need support and offers her a carer's assessment.

Fluctuating needs

6.113 Individuals with fluctuating needs may have needs which are not apparent at the time of the assessment, but may have arisen in the past and are likely to arise again in the future. Therefore local authorities must consider an individual's need over an appropriate period of time to ensure that all of their needs have been accounted for when eligibility is being determined. Where fluctuating needs are apparent, this should also be factored into the care plan, detailing the steps local authorities will take to meet needs in circumstances where these fluctuate. For example, an adult with a mental illness, which has been managed in the past 8 months but which could deteriorate, if circumstances in the adult's life change. In such situations, local authorities must consider the nature of the adult's needs have been over the past year to get a complete picture of the adult's level of need.

6.114 When considering the type of needs an adult may have, local authorities should note that there is no hierarchy of needs or of the areas of wellbeing as described in chapter 1 of this guidance.

Considering needs met by carers in eligibility determinations

6.115 The eligibility determination must be made based on the adult's needs and how these impact on their wellbeing. Authorities must only take consideration of whether the adult has a carer, or what needs may be met by a carer after the eligibility determination when a care and support plan is prepared. The determination must be based solely on the adult's needs and if an adult does have a carer, the care they are providing will be taken into account when considering whether the needs must be met. Local authorities are not required to meet any eligible needs which are being met by a carer, but those needs should be recognised and recorded as eligible during the assessment process. This is to ensure that should there be a breakdown in the caring relationship, the needs are already identified as eligible, and therefore local authorities must take steps to meet them without further assessment.

What is the national eligibility threshold for carers?

6.116 Carers can be eligible for support in their own right. The national eligibility threshold for carers is also set out in the Care and Support (Eligibility Criteria) Regulations 2015. The threshold is based on the impact a carer's needs for support has on their wellbeing.

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

A carer's needs are only eligible where they meet all 3 of these conditions.

Interpreting the carers' eligibility criteria

The needs arise as a consequence of providing necessary care for an adult

6.118 Local authorities must consider whether the carer's need for support arises because they are providing care to an adult. Carers can be eligible for support whether or not the adult for whom they care has eligible needs. The eligibility determination must be made based on the carer's needs and how these impact on their wellbeing. The determination should be made without consideration of whether or not the adult the carer cares for, has eligible needs.

6.119 The carer must also be providing necessary care. If the carer is providing care and support for needs which the adult is capable of meeting themselves, the carer may not be providing necessary support. In such cases, local authorities should provide information and advice to the adult and carer about how the adult can use their own strengths or services available in the community to meet their needs.

The effect of the carer's needs is that any of the circumstances specified in the Eligibility Regulations apply to the carer

6.120 The second condition that authorities must consider is whether the carer's physical or mental health is either deteriorating or is at risk of doing so, or whether the carer is unable to achieve any of a list of other outcomes which may apply.

6.121 Authorities must be aware that the regulations provide that 'being unable' to achieve outcomes, includes circumstances where the carer:

6.122 The Eligibility Regulations set out a range of outcomes. Local authorities must consider whether the carer is able to achieve these outcomes or if due to the nature of their needs they are unable to achieve any of the outcomes. The carer will have eligible needs met if they are unable to achieve any of these outcomes and as a result there is, or there is likely to be, a significant impact on their wellbeing.

6.123 The following section of the guidance provides examples of how local authorities should consider the outcomes set out in the Eligibility Regulations when they determine whether a carer meets the eligibility criteria. To be eligible, a carer must be unable to achieve any of the following outcomes:

Criteria

Examples of how to interpret the criteria

(i) carrying out any caring responsibilities the carer has for a child

Local authorities should consider any parenting or other caring responsibilities the carer has for a child in addition to their caring role for the adult. For example, the carer might be a grandparent with caring responsibilities for their grandchildren while the grandchildren's parents are at work.

(ii) providing care to other persons for whom the carer provides care

Local authorities should consider any additional caring responsibilities the carer may have for other adults. For example, a carer may also have caring responsibilities for a parent in addition to caring for the adult with care and support needs.

(iii) maintaining a habitable home environment

Local authorities should consider whether the condition of the carer's home is safe and an appropriate environment to live in and whether it presents a significant risk to the carer's wellbeing. A habitable home should be safe and have essential amenities such as water, electricity and gas.

(iv) managing and maintaining nutrition

Local authorities should consider whether the carer has the time to do essential shopping and to prepare meals for themselves and their family.

(v) developing and maintaining family or other significant personal relationships

Local authorities should consider whether the carer is in a position where their caring role prevents them from maintaining key relationships with family and friends or from developing new relationships where the carer does not already have other personal relationships.

(vi) engaging in work, training, education or volunteering

Local authorities should consider whether the carer can continue in their job, and contribute to society, apply themselves in education, volunteer to support civil society or have the opportunity to get a job, if they are not in employment.

(vii) making use of necessary facilities or services in the local community

Local authorities should consider whether the carer has an opportunity to make use of the local community's services and facilities and for example consider whether the carer has time to use recreational facilities such as gyms or swimming pools.

(viii) engaging in recreational activities

Local authorities should consider whether the carer has leisure time, which might for example be some free time to read or engage in a hobby.

As a consequence of that fact there is, or there is likely to be, a significant impact on the carer's wellbeing

6.124 The third condition that must be met is that local authorities must consider whether the carer's needs and their inability to achieve the outcomes above present a significant impact on the carer's wellbeing. 'Wellbeing' is defined by referring to examples of specific areas in Section 1 of the Care Act (see chapter 1). In doing so, local authorities should consider whether:

the carer's needs and inability to achieve the outcomes impact on an area of the carer's wellbeing in a significant way

the impact on a number of the areas of wellbeing is such that they have a significant impact on an adult's overall wellbeing

6.125 The term 'significant' is not defined by the Regulations, and must therefore be understood to have its everyday meaning. 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.

6.126 In making this judgment, local authorities should look to understand the carer's needs in the context of what is important to them. The impact of needs may affect different carers differently, because what is important to the individual's wellbeing may not be the same in all cases. Circumstances which create a significant impact on the wellbeing of one individual may not have the same effect on another.

6.127 When considering the type of needs a carer may have, local authorities should note that there is no hierarchy of needs or of the areas of wellbeing as described in chapter 1 of the guidance.

6.128 The following illustrates the interplay of the outcomes listed in the eligibility regulations and the wellbeing principle, which is broken down into areas of wellbeing in Chapter 1 of this guidance.

Carers' eligibility decision process

1. Needs

The needs arise as a consequence of providing necessary care to an adult, and the carer is 'unable' to achieve the following:

2. Outcomes

As a result of the carer's needs, either:

the carer's physical; or mental health is, or is at risk of, deteriorating

the carer is unable to achieve any of the following outcomes:

carrying out any caring responsibilities the carer has for a child

providing care to other persons for whom the carer provides care

maintaining a habitable home environment

managing and maintaining nutrition

developing and maintaining family or other significant personal relationships

accessing and engaging in work, training, education or volunteering

making use of necessary facilities or services in the local community including recreational facilities or services

engaging in recreational activities

3. Wellbeing

As a consequence, there is or is likely to be a significant impact on the carer's wellbeing, including:

6.129 The case studies which follow demonstrate examples of how eligibility determinations may be made. The purpose of these case studies is to illustrate eligibility on the basis of significant impact on wellbeing where the carer has needs caused by providing necessary care. Significant impact on wellbeing is personal, so although 2 people are in similar circumstances, the impact on their wellbeing is different.

Case Study 1: Deirdre (not eligible)

Deirdre is 58 and has been caring for her neighbour for the past 6 years. Deirdre has been coping with her caring responsibilities, which include checking in on her neighbour, doing her shopping and cleaning and helping her with the cooking every other day.

Deirdre works 20 hours a week at the local school, and she is also helping her daughter by picking up her grandchild after school. Deirdre's son is concerned that she is taking on too much and notices that she is tired. Deirdre's son persuades her to ask the local authority for a carer's assessment.

Caring responsibilities

Neighbour with COPD.

Outcomes

Deirdre enjoys the variety that her working life and caring role provide. She would like to be able to spend more time with her grandchild in the afternoons, but recognises that there is a balance between doing this and caring for her neighbour. Deirdre's needs impact on the following outcomes:

carrying out caring responsibilities the carer has for a child

engaging in recreational activities

Impact on wellbeing

Deirdre's needs are impacting on a few outcomes.

Deirdre enjoys her caring responsibility for her grandchild and would like more free time. On the other hand, her caring roles are fulfilling so although Deirdre is tired at the end of the day, her local authority does not think her wellbeing is significantly affected.

Decision: Not Eligible

The local authority decides that Deirdre is not eligible because her wellbeing is not significantly affected.

Next actions

The local authority recognises that Deirdre could do with some advice to help her manage her day so that she can find some time for herself and so she does not get tired. They advise on how she may reduce some of her tasks such as sitting down with her neighbour to order their food shopping online rather than carrying them home. They make contact with a local carers' organisation and the local authority makes sure Deirdre is able to access it. The organisation is able to provide additional advice.

Case study 2: Sam (eligible)

Sam is 38 and cares for his mother who has early-stage dementia. Sam's mother has telecare, but he still checks in on her daily, and does her shopping, cooking and laundry. Sam is a divorced father of 2 children, who live with him every other week. Sam works fulltime in an IT company and has come forward for an assessment as he is starting to feel unable to cope with his various responsibilities in the weeks when he looks after his children. Sam has made an arrangement with his employer that he can work longer hours on the weeks when the children are with their mother and fewer when he has the children.

Caring responsibilitie

Mother with early stage dementia.

Outcomes

Sam wants to spend more time with his children and for instance be able to free up an hour in the afternoon to help them with their homework, so it doesn't have to be done in the evening when the children are tired. Sam's needs impact on the following outcomes:

carrying out caring responsibilities the carer has for a child

engaging in recreational activities

Impact on wellbeing

Sam's responsibilities impact on a few important outcomes. Sam is starting to feel like he is failing as a parent and it affects the relationship he has with his children, his ex-wife, and his mother. He also worries that his ability to stay in work would be in jeopardy unless he receives support. Sam seems quite stressed and anxious.

Decision: Eligible

The local authority decides that Sam's fluctuating needs are eligible for support, because it perceives that they have a significant impact on his wellbeing. If the local authority supports Sam to maintain his current role, everyone is better off, because Sam can stay in employment, sustain his family relationships and provide security for his mother.

Next actions

The local authority gives Sam a direct payment which he uses to pay for a care worker to come in for 3 days every other week to check on his mother and make her a meal. This gives Sam more time to spend with his children, doing homework with them and spending some more relaxed time with them.

The local authority directs Sam to a carers' organisation which provides Sam with information about his rights at work and how to speak to his employers.

Fluctuating needs

6.130 Carers with fluctuating needs may have needs which are not apparent at the time of the assessment, but may have arisen in the past and are likely to arise again in the future. Therefore local authorities must consider an individual's need over an appropriate period of time to ensure that all of their needs have been accounted for when the eligibility is being determined. Where fluctuating needs are apparent, this should also be factored into the care plan, detailing the steps local authorities will take to meet needs in circumstances where these fluctuate. For example, a carer could be caring for an adult with a mental illness, who has managed their condition well in the past 8 months, but who could deteriorate, if circumstances in the adult's life change. In such situations, local authorities must consider how the carer's needs change as a result of the fluctuation in the needs of the person they are caring for. Authorities must get a complete picture of the carer's level of need over an appropriate period.

6.132 The level of a carer's need can also fluctuate irrespective of whether the needs of the adult for whom they care, fluctuate. For example, if the carer is a parent of school children, they may not have the same level of need for support during term time as during school holidays.

What must local authorities do after the eligibility determination?

6.132 When the eligibility determination has been made, local authorities must provide the person to whom the determination relates (whether that is an adult with care and support needs, or a carer with support needs) with a copy of their decision.

6.133 Where the person is found to have no eligible needs, local authorities must provide information and advice on what can be done to meet or reduce the needs (for example what support might be available in the community to help the adult or carer) and what can be done to prevent or delay the development of needs in the future. Local authorities should consider how this package of information can be tailored to the needs which the person does have, with the aim of delaying deterioration and preventing future needs, and reflect the availability of local support (see also chapter 2 on preventative services and chapter 3 on information and advice).

6.134 If the adult has some eligible needs, the local authority must:

7. Independent advocacy

This chapter provides guidance on:

Sections 67 and 68 of the Care Act 2014

the Care and Support (Independent Advocacy) Regulations 2014

This chapter covers:

7.1 The purpose of this section of guidance is to ensure that local authorities fully understand their duties in relation to the provision of independent advocacy and to assist them in carrying out these duties effectively.

7.2 There are duties to arrange an independent advocate for all adults, as part of their own assessment and care planning and care reviews and to those in their role as carers. It also applies to children who are approaching the transition to adult care and support, when a child's needs assessment is carried out, and when a young carer's assessment is undertaken.

7.3 There is also a separate duty to arrange an independent advocate for adults who are subject to a safeguarding enquiry or Safeguarding Adults Review ( SAR).

7.4 Local authorities must arrange an independent advocate to facilitate the involvement of a person in their assessment, in the preparation of their care and support plan and in the review of their care plan, as well as in safeguarding enquiries and SARs if 2 conditions are met. That if an independent advocate were not provided then the person would have substantial difficulty in being fully involved in these processes and second, there is no appropriate individual available to support and represent the person's wishes who is not paid or professionally engaged in providing care or treatment to the person or their carer. The role of the independent advocate is to support and represent the person and to facilitate their involvement in the key processes and interactions with the local authority and other organisations as required for the safeguarding enquiry or SAR.

7.5 Everyone should have access to information and advice on care and support and keeping safe from abuse or neglect (see chapters 3 and 14). Prior to making contact with the local authority, there may be some people who require independent advocacy to access that information and advice. Local authorities will need to consider such needs in ensuring that the information and advice service is accessible. Subsequently, once a person has contacted the local authority, or come to the local authority's attention as a result of a safeguarding concern, they must be actively involved in identifying their needs through assessment, in developing their care and support plan, and in leading their care reviews, where relevant, and being involved in any safeguarding enquiry or SAR. The aim of the duty to provide advocacy is to enable people who have substantial difficulty in being involved in these processes to be supported in that involvement as fully as possible, and where necessary to be represented by an advocate who speaks on their behalf. The Equality Act 2010, requires that reasonable adjustments should be made to ensure that disabled people have equal access to information and advice services. Provision of such adjustments, information in different formats for example, may reduce or remove a substantial difficulty a person may have in being involved. The ultimate aim is for people's wishes, feelings and needs to be at the heart of the assessment, care planning and review processes. This needs to be just as true for those who are the subject of a safeguarding enquiry or safeguarding adult review ( SAR).

Advocacy and the duty to involve

7.6 Local authorities must involve people in decisions made about them and their care and support or where there is to be a safeguarding enquiry or SAR. Involvement requires the local authority helping people to understand how they can be involved, how they can contribute and take part and sometimes lead or direct the process. People should be active partners in the key care and support processes of assessment, care and support and support planning, review and any enquiries in relation to abuse or neglect. No matter how complex a person's needs, local authorities are required to involve people, to help them express their wishes and feelings, to support them to weigh up options, and to make their own decisions.

7.7 The duty to involve applies in all settings, including for those people living in the community, in care homes or, apart from safeguarding enquiries and SARs, [footnote 24] in prisons, for example.

7.8 Local authorities must form a judgment about whether a person has substantial difficulty in being involved with these processes. If it is thought that they do, and that there is no appropriate individual to support and represent them for the purpose of facilitating their involvement, then the local authority must arrange for an independent advocate to support and represent the person.

7.9 Many of the people who qualify for advocacy under the Care Act will also qualify for advocacy under the Mental Capacity Act 2005. The same advocate can provide support as an advocate under the Care Act and under the Mental Capacity Act. This is to enable the person to receive seamless advocacy and not to have to repeat their story to different advocates. Under whichever legislation the advocate providing support is acting, they should meet the appropriate requirements for an advocate under that legislation.

Judging 'substantial difficulty' in being involved

7.10 Local authorities must consider for each person, whether they would have substantial difficulty in engaging with the local authority care and support processes. The Care Act defines 4 areas in any one of which a substantial difficulty might be found, which are set out below. Understanding relevant information

7.11 The first area to consider is 'understanding relevant information'. Many people can be supported to understand relevant information, if it is presented appropriately and if time is taken to explain it. Some people, however, will not be able to understand relevant information, for example if they have mid-stage or advanced dementia.

Retaining information

7.12 The second area to consider is 'retaining information'. If a person is unable to retain information long enough to be able to weigh up options and make decisions, then they are likely to have substantial difficulty in engaging and being involved in the process.

Using or weighing the information as part of engaging

7.13 The third area is 'using or weighing the information as part of the process of being involved.' A person must be able to weigh up information, in order to participate fully and express preferences for or choose between options. For example, they need to be able to weigh up the advantages and disadvantages of moving into a care home or terminating an undermining relationship. If they are unable to do this, they will have substantial difficulty in engaging and being involved in the process.

Communicating their views, wishes and feelings

7.14 The fourth area involves 'communicating their views, wishes and feelings'. A person must be able to communicate their views, wishes and feelings whether by talking, writing, signing or any other means, to aid the decision process and to make priorities clear. If they are unable to do this, they will have substantial difficulty in engaging and being involved in the process.

7.15 For example, a person with mid-stage or advanced dementia, significant learning disabilities, a brain injury or mental ill health may be considered to have substantial difficulty in communicating their views, wishes and feelings. But equally a person with Asperger's may be considered, as may a frail older person who does not have any diagnosis but is confused as a result of an infection, or a person who is near the end of their life and appears disengaged from involvement and decision-making. Within this context, it is the person's ability to communicate their views, wishes and feelings which is fundamental to their involvement rather than the diagnosis or specific condition.

7.16 Both the Care Act and the Mental Capacity Act recognise the same areas of difficulty, and both require a person with these difficulties to be supported and represented, either by family or friends, or by an advocate in order to communicate their views, wishes and feelings.

Case Study

Stephen sustained a brain injury in a fall; he has completed 6 months in a specialist residential rehabilitation setting and the next step is an assessment of need for his continuing support.

Prior to this, the social worker telephones Stephen's treating clinician who confirms that because of his brain injury, Stephen lacks insight into the effects this has had on him and he also has difficulty processing lots of information quickly - this is a common symptom of brain injury.

Therefore the social worker decides on an initial short meeting to determine Stephen's needs and knows her first step will be to evaluate if Stephen has difficulty understanding and therefore being involved in the assessment process. If so, support could come from a carer, family member or friend or Mental Capacity Advocate, as she is aware lack of insight does not necessarily determine lack of capacity.

The social worker notes that Stephen is able to retain information about who she is and why she is meeting with him. He is articulate and can converse well about his plans for the future which includes detailed plans to meet up with friends and return to work again. However, a pre-assessment conversation with his mother, confirms that his friendship group has significantly diminished as his friends find it difficult to understand the differences in his behaviour since his fall and doubts whether he will be able to return to full-time employment. The social worker judges that because Stephen lacks insight into his personal relationships and future plans, he may well also have trouble estimating his true care and support needs. At this point the social worker decides that Stephen would have substantial difficulty in being fully involved in the rest of the assessment process and would therefore benefit from assistance.

Stephen is adamant that he wants to act and make decisions independently of his mother, though he is happy for her to inform the assessment process. The social worker decides that Stephen's mother would not be an appropriate person under the Care Act to support his involvement in the needs assessment. The social worker talks to Stephen about how an independent advocate could help him make sure his views, beliefs, wishes and aspirations are taken into account in the assessment, and with his agreement, arranges for an independent advocate with specialist brain injury training to support him. The independent advocate meets Stephen but also talks to his mother to get a true picture of Stephen's current needs and wishes and to ascertain the differences between how Stephen is now and prior to acquiring his brain injury. The social worker carries out the needs assessment with Stephen who is supported by his independent advocate, and with Stephen's approval, input from his mother.

When the duty to provide independent advocacy applies

Assessment of needs

7.17 From the point of first contact, request or referral (including self-referral) for an assessment, the local authority must involve the person (see chapter 6 on Assessment). They must initially consider the best way of involving the person in the assessment processes, which is appropriate and proportionate to the person's needs and circumstances. In some cases this may be relatively brief, in others it may consist of a series of interviews, in the person's own home or other care settings, over a period of time.

7.18 At the start of the assessment process, if it appears to the local authority that a person has care and support or support needs, and throughout any subsequent part of the process, the local authority must judge whether a person has substantial difficulty in involvement with the assessment, the care and support planning or review processes. The identification of a potential need for advocacy may arise through the process, from the person themselves, carers or family. Where an authority has outsourced or commissioned all or some of this process, the authority will maintain overall responsibility for this judgement.

7.19 Where the local authority considers that a person has substantial difficulty in engaging with the assessment process, then they must consider whether there is anyone appropriate who can support the person be fully involved. This might for example be a carer (who is not professionally engaged or remunerated), a family member or friend. If there is no one appropriate, then the local authority must arrange for an independent advocate. The advocate must support and represent the person in the assessment, in the care and support planning, and the review. This applies to the following:

7.20 As part of the assessment and the care and support plan, the local authority must have regard to the need to help protect people from abuse and neglect. They should assist the person to identify any risks and ways to manage them. They should also assist the person to decide how much risk they can manage. The local authority must also have regard to ensuring that any restriction on the person's rights or freedom is kept to the minimum necessary. Restrictions should be carefully considered and frequently reviewed. Any potential deprivation of liberty must be authorised, either by a Deprivation of Liberty Authorisation by the local authority or the Court of Protection under the Deprivation of Liberty Safeguards in the Mental Capacity Act.

7.21 Where it appears that a person may be eligible for NHS Continuing Healthcare ( NHS CHC), local authorities must notify the relevant NHS body. NHS CHC is a package of ongoing care that is arranged and funded solely by the NHS where the individual has complex ongoing healthcare needs of a type or quantity such that they are found to have a 'primary health need' as set out in the national framework for NHS Continuing Healthcare and NHS-funded nursing care. Where an individual is not eligible for NHS CHC, local authorities still have a duty to carry out an assessment of needs where a person has an appearance of needs and a duty to meet those eligible needs (see chapter 6 on assessment) and therefore have a consequential duty to consider the need for an independent advocate to support the person's involvement in that assessment. This guidance applies equally to those people whose needs are being jointly assessed by the NHS and the local authority or where a package of support is, planned, commissioned or funded by both a local authority and a Clinical Commissioning Group ( CCG), known as a joint package of care.

7.22 These processes and arrangements have historically been difficult for individuals, their carers, family or friends, to understand and be involved in. Local authorities (with CCGs) will therefore want to consider the benefits of providing access to independent advice or independent advocacy for those who do not have substantial difficulty and/or those who have an appropriate person to support their involvement. Effective joint commissioning arrangements would involve:

7.23 Under the Mental Health Act 1983 ( MHA) certain people, known as 'qualifying patients', are entitled to the help and support from an Independent Mental Health Advocate (IMHA). Section 117 of the MHA places a duty on the NHS and local authorities to provide aftercare and this will usually involve a joint assessment (often under the Care Programme Approach) including an assessment of the person's care and support needs, a care and support or support plan and subsequent review (which may reach a decision that a person is no longer in need of aftercare). Those people who do not retain a right to an IMHA, whose care and support needs are being assessed, planned or reviewed should be considered for an advocate under the Care Act, if they have substantial difficulty in being involved and if there is no appropriate person to support their involvement (see paragraph 7.32).

Safeguarding enquiries and safeguarding adult reviews (SARs)

7.24 The local authority must arrange, where necessary, for an independent advocate to support and represent an adult who is the subject of a safeguarding enquiry or a safeguarding adult review. Where an independent advocate has already been arranged under s67 Care Act or under MCA 2005 then, unless inappropriate, the same advocate should be used.

7.25 Effective safeguarding is about seeking to promote an adult's rights as well as about protecting their physical safety and taking action to prevent the occurrence or reoccurrence of abuse or neglect. It enables the adult to understand both the risk of abuse and actions that she or he can take, or ask others to take, to mitigate that risk.

7.26 There is increasing case law on adult safeguarding from the Court of Protection which advocates and practitioners should be aware.

7.27 If a safeguarding enquiry needs to start urgently then it can begin before an advocate is appointed but one must be appointed as soon as possible. All agencies need to know how the services of an advocate can be accessed and what their role is.

7.28 It is critical in this particularly sensitive area (whether an enquiry or a SAR) that the adult is supported in what may feel a daunting process which may lead to some very difficult decisions. An individual who is thought to have been abused or neglected may be so demoralised, frightened, embarrassed or upset that independent advocacy provided under section 68 to help them to be involved will be crucial.

Case Study Lynette

Lynette, who has learning disabilities, lives in a care home. A support worker contacted the local authority because another resident, Fred, has come into Lynette's room late at night shouting on several occasions and most recently was seen pushing her. A safeguarding enquiry is started and the local authority appoint an independent advocate to support Lynette as they are concerned that she cannot express herself easily. When interviewed by the social worker Lynette cannot describe what happened. The social worker and advocate agree that the advocate will help Lynette to communicate how she feels.

The advocate spends time with Lynette. She explains what is happening and communicates with Lynette about different people that she lives with, including using photos, finding out more about her feelings. Lynette appears to be generally happy around the house and when going out, but is very distressed when she sees Fred in person, or even when she sees a picture of him. The advocate makes clear to the Local Authority what Lynette has communicated.

The local authority finds that whilst there is no doubt that Fred did what was reported, he may have done so as a result of his own confusion and distress. They agree a proposal from the registered manager of the care home that alarms will be put on Fred's door and staffing numbers increased to prevent a recurrence. The local authority agrees to review the situation after some weeks during which time the advocate stays in contact with Lynette in order to understand the impact of this decision on Lynette. The advocate finds that Lynette remains distressed by Fred's presence. She is concerned that the measures in place are not sufficient and writes this in a report to the local authority detailing what Lynette has communicated about where she lives and about Fred. The local authority agrees to look at what further action may be needed which might include considering whether Lynette and Fred should continue to share accommodation.

The main aspect of wellbeing promoted is protection from abuse and neglect, but also personal dignity and emotional wellbeing. The local authority has also demonstrated its regard for Lynette's views, wishes, feelings and beliefs.

Continuity of care and ordinary residence

7.29 The local authority which is carrying out the assessment, planning or review of the plan is responsible for considering whether an advocate is required. In the case of a person who is receiving care and support from one local authority and decides to move and live in another authority, the responsibility will move with the care and support assessment (see chapter 20). For a person whose care and support is being provided out of area (in a type of accommodation set out in the section on ordinary residence (see chapter 19) it will be the authority in which the person is ordinarily resident. Understanding of local communities may be an important consideration, so the advocacy/advocate should wherever possible be from the area where the person is resident at the time of the assessment, planning or review.

Consequences for local authorities

The local authority should have local policies to clarify the appointing of advocates:

from advocacy services out of their area that they may not have a direct commissioning relationship with (as it currently is with Independent Mental Capacity Advocate (IMCA))

for people placed out of area temporarily

for people who move from one area to another following an assessment and care and support planning in which an advocate is involved (the same advocate should be involved wherever practicable)

Care and support reviews

7.30 The local authority must involve the person, their carer and any other individual that the person wants to be involved in any review of their care and support plan, and take all reasonable steps to agree any changes (see chapter 13).

7.31 Local authorities must consider whether an advocate is required to facilitate the person's involvement in the review of a care and support plan and, if appropriate, appoint an advocate. This applies regardless of whether an advocate was involved at an earlier stage. Examples of when an advocate may be appointed at this stage despite not previously being involved include:

Judgements made by the local authority

An appropriate individual to facilitate the person's involvement

7.32 Local authorities must consider whether there is an appropriate individual (or individuals) who can facilitate a person's involvement in the assessment, planning or review processes, and this includes 3 specific considerations.

7.33 First, it cannot be someone who is already providing the person with care or treatment in a professional capacity or on a paid basis (regardless of who employs or pays for them). That means it cannot be, for example, the person's GP, nurse, key worker or care and support worker.

Case study: Janice

Janice is 43 and cares for her mother Sheena who is 72 who has advanced Parkinson's and increasing cognitive and communication difficulties. Janice cares for her mother in excess of 40 hours per week. Janice gave up work to care for her mother 5 years ago, and using her direct payment Sheena pays her daughter for 8 hours per week for care and support, including helping her with personal care, cooking meals and grocery shopping. Sheena preferred this to paying someone else - she prefers not to have strangers in the house and finds that others often do not understand her needs. As Janice is caring for her mother for many more hours than this, Janice has received a carers assessment and receives her own carers personal budget which she uses for breaks such as her weekly aerobics class which she finds helps her keep in touch with her friends, stay healthy, and deal with stress.

There is no-one else available to act as an appropriate individual to support Sheena in decision making. Both Sheena and Janice would be happy for Janice to take on this role. However, as Janice received a payment, she would not be regarded as an appropriate individual, though the guidance states that good practice should ensure Janice's views are sought as Sheena has made clear that she wishes this to happen.

7.34 Second the person's wish not to be supported by that individual should be respected. Where a person does not wish to be supported by a relative, for example, perhaps because they wish to be moving towards independence from their family, then the local authority cannot consider the relative appropriate. The person's wish not to be supported by that individual should be respected and if the person has capacity, or is competent to consent, the person's wishes must be followed. If the person has been judged to lack the capacity to make a decision, then the local authority must be satisfied that it is in a person's best interests to be supported and represented by the individual.

Case study

If the person already has an advocate, whose role so far has been to support the person on matters not under the Care Act, who is able and willing to facilitate their involvement in the assessment, planning and review processes then they may be an appropriate individual to support the person's involvement and represent them. They would be acting as an appropriate person rather than an independent advocate under the Care Act. If, however, that advocate fulfils the requirements for an independent advocate under the Care Act then they can be appointed as such.

Additionally, if an advocate is required under the Mental Capacity Act, and the local authority is going to appoint the same person to be that advocate, then the instruction, appointment and qualification of the advocate must also meet the requirements of the Mental Capacity Act.

7.35 Third, the appropriate individual is expected to support and represent the person and to facilitate their involvement in the processes. It is unlikely that some people will be able to fulfil this role easily, for instance a family member who lives at a distance and who only has occasional contact with the person, a spouse who also finds it difficult to understand the local authority processes, a friend who expresses strong opinions of her own prior to finding out those of the individual concerned, or a housebound parent. It is not sufficient to know the person well or to love them deeply; the role of the appropriate individual is to support the person's active involvement with the local authority processes (see chapter 6).

Case study: Jacinta

Jacinta is 26 and lives with her mother and father. She has 2 siblings aged 28 and 23 who have left the family home. Jacinta would also like to move to living more independently. Jacinta has moderate learning disabilities and finds it hard to retain information. Jacinta's parents are very worried that she won't be able to cope living in her own home and are against her doing so. In these circumstances Jacinta's parents would not be 'an appropriate person' who could effectively represent and support her involvement.

Case study: Brian

Brian is 84 and has advancing dementia. He lives alone in the house he owns. Brian has very limited mobility, has frequent falls and has difficulty in remembering to take medication and to eat. He has periods when he is confused and weighing up the longer term advantages and disadvantages of this care and support options, but has been judged to retain 'capacity' Brian says he feels very lonely. Social services are already providing some domiciliary care for which Brian is charged. The local authority is reviewing Brian's care plan. Brian's daughter and son in law who have had little contact with Brian over the past few years and will inherit the house are adamant that he can cope at home and does not need to go into a care home. In these circumstances, in addition to a lack of recent contact, there could be a conflict of interests and Brian's relatives would not be 'an appropriate person'.

7.36 It will clearly not be suitable for a person to be regarded as an appropriate individual where they are implicated in any enquiry of abuse or neglect or have been judged by a SAR to have failed to prevent an abuse or neglect.

7.37 Sometimes the local authority will not know at the point of first contact or at an early stage of the assessment whether there is someone appropriate to assist the person in engaging. They may need to appoint an advocate, and find later that there is an appropriate person in the person's own network. The advocate can at that stage 'hand over' to the appropriate person. Alternatively, the local authority may agree with the individual, the appropriate person and the advocate that it would be beneficial for the advocate to continue their role, though this is not a specific requirement under the legislation. Equally, it is possible that the local authority will consider someone appropriate who may then turn out to have difficulties in supporting the person to engage and be involved in the process. The local authority must at that point arrange for an advocate.

7.38 There may also be some cases where the local authority considers that a person needs the support of both a family member and an advocate; perhaps because the family member can provide a lot of information but not enough support, or because while there is a close relationship, there may be a conflict of interest with the relative, for example in relation to inheritance of the home.

7.39 If the local authority decides that they are required to appoint an independent advocate as the person does not have friends or family who can facilitate their involvement, the local authority must still consult with those friends or family members when the person asks them to (see chapter 6 on assessment).

7.40 It is the local authority's decision as to whether a family member or friend can act as an appropriate person to facilitate the individual's involvement. It is the local authority's responsibility to communicate this decision to the individual's friends and family where this may have been in question and whenever appropriate. The overall aim should be for people who need advocacy to be identified and when relevant, receive consistent support as early as possible and throughout the assessment, the care and support planning and the review processes.

7.41 The local authority may be carrying out assessments of 2 people in the same household. If both people agree to have the same advocate, and if the local authority consider there is no conflict of interest between the individuals or either of the individuals and the advocate, then the same advocate may support and represent the 2 people. For example, if they both wish to be supported to live together in their own home, then it may make sense for one advocate to support both. But where for example one wishes for the other to be moved away, there may be a conflict of interest and 2 advocates will be needed. If any of the people involved - the people being assessed or taking part in care and support or support planning or the advocate - consider that it would be better to have different advocates, then separate advocates should be provided.

The exceptions: provision of an advocate even where they have family or others who can facilitate the person's involvement.

7.42 In general, a person who has substantial difficulty in being involved in their assessment, plan and review, will only become eligible for an advocate where there is no one appropriate to support their involvement. The exceptions are:

where the exercising of the assessment or planning function might result in placement in NHS-funded provision in either a hospital for a period exceeding 4 weeks or in a care home for a period of 8 weeks or more and the local authority believes that it would be in the best interests of the individual to arrange an advocate

where there is a disagreement, relating to the individual, between the local authority and the appropriate person whose role it would be to facilitate the individual's involvement, and the local authority and the appropriate person agree that the involvement of an independent advocate would be beneficial to the individual

Who can act as an advocate?

7.43 Advocates must have:

A suitable level of appropriate experience

This may, for example, be in non-instructed advocacy or in working with those groups of people who may have substantial difficulty in engaging with assessments and care and support planning

Appropriate training

This may, for example, initially be training in advocacy (non-instructed and instructed) or dementia, or working with people with learning disabilities. Once appointed, all independent advocates should be expected to work towards the National Qualification in Independent Advocacy (level 3) within a year of being appointed, and to achieve it in a reasonable amount of time

Competency in the task

This will require the advocacy organisation assuring itself that the advocates who work for it are all competent and have regular training and assessment

Integrity and good character

This might be assessed through: interview and selection processes; seeking and scrutinising references prior to employment and on-going DBS checks [footnote 25]

The ability to work independently of the local authority or body carrying out assessments, planning or

reviews on the local authority's behalf

This would include the ability to make a judgement about what a person is communicating and what is in a person's best interests, as opposed to in a local authority's best interests, and to act accordingly to represent this

Arrangements for regular supervision

This will require that the person meets regularly and sufficiently frequently with a person with a good understanding of independent advocacy who is able to guide their practice and develop their competence

7.44 The third updated version on the Advocacy Quality Performance Mark ( QPM) was published on 3 April 2014 by the National Development Team for Inclusion (NDTi). The QPM is a tool for providers of independent advocacy to show their commitment and ability to provide high quality advocacy services - essential for people to have their voices heard, to exercise choice and control and to live independently.

7.45 To prevent potential conflict of interest, the independent advocate must not be working for the local authority, or for an organisation that is commissioned to carry out assessments, care and support plans or reviews for the local authority unless the potential conflict of interests is adequately addressed within the organisation's structure (for example a different group within a company or through an effective 'firewall', as in the banking industry). In certain circumstances, in addition to their role under the Care Act, an advocate may assist an individual to develop their own care or support plan if requested to by the individual, but they cannot be the person to authorise the support plan or to approve care and support plans or reviews on behalf of the authority. Nor can an advocate be appointed if they are providing care or treatment to the individual in a professional or a paid capacity.

The role of the independent advocate

7.46 It is intended that advocates will decide the best way of supporting and representing the person they are advocating for, always with regard to the wellbeing and interest (including their views, beliefs and wishes) of the person concerned. This may involve creative approaches, for example, supporting someone to show film to help explain their needs, wishes or preferences.

Case study: Kate

Kate has profound and multiple learning disabilities. She doesn't use formal communication such as words or signs. She communicates using body language and facial expressions. In her assessment, Kate's independent advocate supports her to show some film of her visiting a local market, enjoying the colours and sounds around her. In this way, Kate is able to show the assessor some of the things that are important to her.

7.47 In addition, where practicable, they are expected to meet the person in private. Where a person has capacity, the advocate should ask and obtain their written consent to look at their records and to talk to their carer, family, friends, care or support worker and others who can provide information about their needs and wishes, their beliefs and values. Where a person does not have capacity to decide whether an advocate should look at their relevant records or talk to their family and friends, then the advocate should consult the records and the family and others as appropriate, but consulting the family and others only where the advocate considers this is in the person's best interests. The Care Act allows advocates to examine and take copies of relevant records in certain circumstances. This mirrors the powers of an Independent Mental Capacity Advocate.

7.48 Acting as an advocate for a person who has substantial difficulty in engaging with care and support or safeguarding processes is a responsible position. It includes:

assisting a person to understand the assessment, care and support planning and review and safeguarding processes. This requires advocates to understand local authority policies, and other agencies roles, and processes, the available assessment tools, the planning options, and the options available at the review of a care or support plan are required and good practice in safeguarding enquiries and SARs. It may involve advocates spending considerable time with the individual, considering their communications needs, their wishes and feelings and their life story, and using all this to assist the person to be involved and where possible to make decisions

assisting a person to communicate their views, wishes and feelings to the staff who are carrying out an assessment or developing a care or support plan or reviewing an existing plan or to communicate their views, wishes and feelings to the staff who are carrying out safeguarding enquiries or reviews

assisting a person to understand how their needs can be met by the local authority or otherwise - understanding for example how a care and support and support plan can be personalised, how it can be tailored to meet specific needs, how it can be creative, inclusive, and how it can be used to promote a person's rights to liberty and to family life

assisting the person to make decisions about their care and support arrangements - assisting them to weigh up various care and support options and to choose the ones that best meet the person's needs and wishes.

assisting the person to understand their rights under the Care Act - for an assessment which considers their wishes and feelings and which considers the views of other people; their right to have their eligible needs met, and to have a care or support plan that reflects their needs and their preferences, and in relation to safeguarding, understanding their right to have their concerns about abuse taken seriously and responded to appropriately. Also assisting the person to understand their wider rights, including their rights to liberty and family life. A person's rights are complemented by the local authority's duties, for example to involve the person, to meet needs in a way that is least restrictive of a person's rights

assisting a person to challenge a decision or process made by the local authority; and where a person cannot challenge the decision even with assistance, then to challenge it on their behalf

7.49 In terms of safeguarding there are some particular important issues for advocates to address. These include assisting a person to:

Representing

7.50 There will be times when an advocate will have concerns about how the local authority has acted or what decision has been made or what outcome is proposed. The advocate must write a report outlining their concerns for the local authority. The local authority should convene a meeting with the advocate to consider the concerns and provide a written response to the advocate following the meeting.

7.51 Where the individual does not have capacity, or is not otherwise able, to challenge a decision, the advocate must challenge any decision where they believe the decision is inconsistent with the local authority's duty to promote the individual's wellbeing.

7.52 Where a person has been assisted and supported and nevertheless remains unable to make their own representations or their own decisions, the independent advocate must use what information they have collected and found, and make the representations on behalf of the person. They must 'advocate' on their behalf, to put their case, to scrutinise the options, to question the plans if they do not appear to meet all eligible needs or do not meet them in a way that fits with the person's wishes and feelings, or are not the least restrictive of the person's life, and to challenge local authority decisions where necessary. The ultimate goal of this representation is to secure a person's rights, promote the individual's well-being and ensure that their wishes are taken fully into account.

The role of the local authority in supporting the advocate

7.53 The local authority is expected to recognise that an advocate's duty is to support and represent a person who has substantial difficulty in engaging with the local authority processes. The local authority must take into account any representations made by an advocate. The local authority must provide a written response to a report from an advocate which outlines concerns about how the local authority has acted or what decision has been made or what outcome is proposed. The local authority should understand that the advocate's role incorporates 'challenge' on behalf of the individual.

7.54 The local authority is responsible for ensuring that the relevant people who work for the authority are aware of the advocacy service and the authority's duty to provide such services (see chapter 3 on information and advice). It may engage with advocates to support this awareness raising.

7.55 The local authority should consider including the identification and referral of those people likely to benefit from independent advocacy (during assessment, care and support planning, review and safeguarding) through the care and support services they may commission. In doing so, the local authority should engage with domiciliary and residential care and support workers and agencies.

7.56 The local authority should take reasonable steps to assist the advocate in carrying out their role. For example, they should let other agencies know that an advocate is supporting a person, facilitating access to the person and to the records [footnote 26], they should propose a reasonable timetable for the assessment and the care and support plan (taking into consideration the needs of the person), and where the advocate wishes to consult family, friends or paid staff, the timetable should allow this. They should keep the advocate informed of any developments and of the outcome of the assessment and the care and support plan.

7.57 The local authority may make reasonable requests of the advocate for information or for meetings both in relation to particular individuals and in relation to the advocate's work more generally, and the independent advocate should comply with these.

7.58 The local authority must meet its duties in relation to working with an Independent Mental Capacity Advocate ( IMCA) provided under the Mental Capacity Act as well as those in relation to an advocate under the Care Act when the advocate is acting in both roles. These duties have been closely aligned so as to facilitate this.

Availability of advocacy services to people in the area

7.59 All local authorities must ensure that there is sufficient provision of independent advocacy to meet their obligations under the Care Act. There should be sufficient independent advocates available for all people who qualify, and it will be unlawful not to provide someone who qualifies with an advocate (see also chapter 4).

7.60 Advocacy should be seamless for people who qualify, so that they can benefit from the support of one advocate for their whole experience of care or safeguarding work. It rarely makes sense to have one advocate for assessment and another for care and support planning; the 2 are interrelated, and people who have substantial difficulty in engaging should not be expected to have to tell their story repeatedly to different advocates.

7.61 The Local Government and Public Involvement in Health Act 2007 (as amended by the Health and Social Care Act 2012), provides that local authorities are under a duty to work with their local CCGs, and other partners through the Health and Wellbeing Board to undertake Joint Strategic Needs Assessments for their areas and to develop Joint Health and wellbeing Strategies. Statutory Guidance, published in March 2013 makes clear that the Joint Strategic Needs Assessment and Joint Health and Wellbeing Strategies must be published, and have specific regard to: 'what health and social care information the community needs, including how they access it and what support they may need to understand it'.

7.62 Local authorities should be aware of and build on the current availability of independent advocacy services in its local area.

7.63 Independent advocacy under the duty flowing from the Care Act is similar in many ways to independent advocacy under the Mental Capacity Act ( MCA). Regulations have been designed to enable independent advocates to be able to carry out both roles. For both:

the independent advocate's role is to support and represent people

the independent advocate's role is primarily to work with people who do not have anyone appropriate to support and represent them

the independent advocates require a similar skill set

regulations about the appointment and training of advocates are similar

local authorities are under a duty to consider representations made by both independent advocates

independent advocates will need to be well known and accessible

independent advocates may challenge local authority decisions

people who qualify for an Independent Mental Capacity Advocate (an IMCA) in relation to the care planning and care review - as that planning may result in an eligible change of accommodation decision - will (in nearly all cases) also qualify for independent advocacy under the Care Act. The provisions of the Care Act are however wider and apply to care planning irrespective of whether it may result in a change of accommodation decision. People for whom there is a power to instruct an IMCA in relation to care review will (in nearly all cases) also qualify for independent advocacy under the Care Act. The Care Act however creates a duty rather than a power in relation to advocacy and care reviews

7.64 However, the duty to provide independent advocacy under the Care Act is broader and provides support to:

people who have capacity but who have substantial difficulty in being involved in the care and support 'processes'

people in relation to their assessment and/or care and support planning regardless of whether a change of accommodation is being considered for the person

people in relation to the review of a care and/or support plan

people in relation to safeguarding processes (though IMCAs may be involved if the authority has exercised its discretionary power under the MCA and appointed an IMCA if protective measures are being proposed for a person who lacks capacity, at the time to make the relevant decisions or understand their consequences)

carers who have substantial difficulty in engaging - whether or not they have capacity

people for whom there is someone who is appropriate to consult for the purpose of best interests decisions under the Mental Capacity Act, but who is not able and/or willing to facilitate the person's involvement in the local authority process

adults who are subject to a safeguarding enquiry or SAR

7.65 Frequently a person will be entitled to an advocate under the Care Act and then, as the process continues it will be identified that there is a duty to provide an advocate ( IMCA) under the Mental Capacity Act. This will occur for example when during the process of assessment or care and support planning it is identified that a decision needs to be taken about the person's long-term accommodation. It would be unhelpful to the individual and to the local authority for a new advocate to be appointed at that stage. It would be better that the advocate who is appointed in the first instance is qualified to act under the Mental Capacity Act (as IMCAs) and the Care Act and that the commissioning arrangements enable this to occur.

7.66 Local authorities do not have to commission one organisation to provide all types of statutory and non-statutory advocacy. But there may be advantages of working with one organisation or working through one liaison point for a consortium of advocacy providers:

Charging and financial assessment

This section includes chapters:

8. Charging and financial assessment

This chapter provides guidance on:

This chapter covers:

This chapter must be read in conjunction with Annexes A to F, which provide further technical and detailed information.

8.1 The Care Act provides a single legal framework for charging for care and support under sections 14 and 17. It enables a local authority to decide whether or not to charge a person when it is arranging to meet a person's care and support needs or a carer's support needs.

8.2 Where a local authority arranges care and support to meet a person's needs, it may charge the adult, except where the local authority is required to arrange care and support free of charge. The new framework is intended to make charging fairer and more clearly understood by everyone. The overarching principle is that people should only be required to pay what they can afford. People will be entitled to financial support based on a means-test and some will be entitled to free care. The framework is therefore based on the following principles that local authorities should take into account when making decisions on charging. The principles are that the approach to charging for care and support needs should:

8.3 Alongside this, local authorities should ensure there is sufficient information and advice available in a suitable format for the person's needs, in line with the Equality Act 2010 (in particular for those with a sensory impairment, with learning disabilities or for whom English is not their first language), to ensure that they or their representative are able to understand any contributions they are asked to make. Local authorities should also make the person or their representative aware of the availability of independent financial information and advice.

Common issues for charging

8.4 Local authorities have a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs. In all cases, a local authority has the discretion to choose whether or not to charge under section 14 of the Care Act following a person's needs assessment. Where it decides to charge, it must follow the Care and Support (Charging and Assessment of Resources) regulations and have regard to the guidance. The detail of how to charge is different depending on whether someone is receiving care in a care home, or their own home, or another setting. However, they share some common elements, which are set out in the following section.

8.5 The different approaches exist to reflect that the delivery model for care homes is relatively uniform across the country and it is therefore sensible to provide a single model for charging purposes. However, other models of care generally see a greater variety of approaches and innovation that we wish to continue.

8.6 Where a local authority chooses to charge, regulations determine the maximum amount a local authority can charge a person.

8.7 Only in care homes, where the financial assessment identifies that a person's resources exceed the capital limits, is a local authority precluded from paying towards the costs of care. Therefore, local authorities should develop and maintain a policy setting out how they will charge people in settings other than care homes. In deciding what it is reasonable to charge, local authorities must ensure that they do not charge more than is permitted under the regulations and as set out in this guidance.

8.8 The subsequent guidance and the supporting annexes assume that the appropriate assessment of needs has been carried out and the local authority has chosen to charge. It therefore provides detail on how to conduct the financial assessment for that person. The local authority has no power to assess couples or civil partners according to their joint resources. Each person must therefore be treated individually. (For further guidance on assessment of needs see Chapter 6.)

8.9 Where a person lacks capacity, they may still be assessed as being able to contribute towards the cost of their care. However, a local authority must put in place policies regarding how they communicate, how they carry out financial assessments and how they collect any debts that take into consideration the capacity of the person as well as any illness or condition. Local authorities are expected to use their social work skills both to communicate with people and also to design a system that works with, and for, very vulnerable people. Sometimes it is useful to consult with and engage with family members; however, family members may not have the legal right to access the person's bank accounts. Where possible, local authorities should work with someone who has the legal authority to make financial decisions on behalf of a person who lacks capacity. If there is no such person, then an approach to the Court of Protection is required.

8.10 The charging rules also apply equally to people in prison. Whilst prisoners have restricted access to paid employment and benefits (and earnings in prison are to be disregarded for the purposes of the financial assessments), any capital assets, savings and pensions will need specific consideration as set out in this chapter and relevant annexes. (For more information on prisons and approved premises see Chapter 17).

Capital limits

8.11 The financial limit, known as the 'upper capital limit', exists for the purposes of the financial assessment. This sets out at what point a person is entitled to access local authority support to meet their eligible needs. Full detail is set out in Annex B, and the local authority must read that guidance before undertaking a financial assessment.

8.12 The upper capital limit is currently set at £23,250. Below this level, a person can seek means-tested support from the local authority. This means that the local authority will undertake a financial assessment of the person's assets and will make a charge based on what the person can afford to pay. In the financial assessment capital below the lower capital limit - currently set at £14,250 - is not taken into account in the assessment of what a person can pay in tariff income assessed against their capital. Where a person's resources are below the lower capital limit of £14,250 they will not need to contribute to the cost of their care and support from their capital. However, for adults receiving care and support in locations other than in a care home the limits of £23,250 and £14,250 are simply minimums and local authorities have discretion to set their own higher capital limits if they wish, provided they are no lower than £23,250 for the upper limit and £14,250 for the lower limit.

8.13 A person with more in capital than the upper capital limit can ask their local authority to arrange their care and support for them. Where the person's needs are to be met by care in a care home, the local authority may choose to meet those needs and arrange the care, but is not required to do so. In other cases, the authority must meet the eligible needs if requested. However, these people are not entitled to receive any financial assistance from their local authority and in any case, may pay the full cost of their care and support until their capital falls below the upper capital limit.

8.14 The local authority must not charge for certain types of care and support which must be arranged free.

These are:

Carrying out a financial assessment

8.15 The legal framework for charging is set out in Sections 14 and 17 of the Care Act. When choosing to charge, a local authority must not charge more than the cost that it incurs in meeting the assessed needs of the person. It also cannot recover any administration fee relating to arranging that care and support. The only exception is in the case of a person with eligible needs and assets above the upper capital limit who has asked the local authority to arrange their care and support on their behalf. In such cases, the local authority may apply an administration fee to cover its costs. However, (see paragraphs 8.55 to 8.60 below) this must not be higher than the cost the local authority has incurred in arranging that care and support. This approach must also apply if the local authority has involved other organisations to deliver its duties in any way.

8.16 Where a local authority has decided to charge, except where a light touch assessment is permissible (see paragraph 8.22 below), it must carry out a financial assessment of what the person can afford to pay and, once complete, it must give a written record of that assessment to the person. This could be provided alongside a person's care and support plan or separately, including via online means. It should explain how the assessment has been carried out, what the charge will be and how often it will be made, and if there is any fluctuation in charges, the reason. The local authority should ensure that this is provided in a manner that the person can easily understand, in line with its duties on providing information and advice.

8.17 In carrying out the assessment, the local authority must have regard to the detailed guidance set out in Annexes B and C that set out how both capital and income should be treated. A local authority must regularly reassess a person's ability to meet the cost of any charges to take account of any changes to their resources. This is likely to be on an annual basis, but may vary according to individual circumstances. However, this should take place if there is a change in circumstance or at the request of the person.

8.18 At the time of the assessment of care and support needs, the local authority must establish whether the person has the capacity to take part in the assessment. If the person lacks capacity, the local authority must find out if the person has any of the following as the appropriate person will need to be involved:

enduring power of attorney (EPA)

lasting power of attorney (LPA) for property and affairs

lasting power of attorney (LPA) for health and welfare

property and affairs deputyship under the Court of Protection

any other person dealing with that person's affairs (for example, someone who has been given appointeeship by the Department for Work and Pensions (DWP) for the purpose of benefits payments)

8.19 People who lack capacity to give consent to a financial assessment and who do not have any of the above people with authority to be involved in their affairs, may require the appointment of a property and affairs deputyship. Family members can apply for this to the Court of Protection or the local authority can apply if there is no family involved in the care of the person. While this takes some weeks, it then enables the person appointed to access information about bank accounts and financial affairs. A person with dementia for example should not be 'forced' to undertake a financial assessment, to sign documents they can no longer understand and should not be punished for any incomplete information that is elicited from them. The local authority should be working with an EPA, a LPA or a deputy instead.

8.20 In the financial assessment, the person's capital is taken into account unless it is subject to one of the disregards set out in Schedule 2 to the regulations and described in Annex B. The main examples of capital are property and savings. Where the person receiving care and support has capital at or below the upper capital limit (currently £23,250), but more than the lower capital limit (currently £14,250), they may be charged £1 per week for every £250 in capital between the 2 amounts. This is called 'tariff income'. For example, if a person has £4,000 above the lower capital limit, they are charged a tariff income of £16 per week.

8.21 In assessing what a person can afford to pay, a local authority must take into account their income. However, to help encourage people to remain in or take up employment, with the benefits this has for a person's well-being, earnings from current employment must be disregarded when working out how much they can pay. There are different approaches to how income is treated depending on whether a person is in a care home or receiving care and support in their own home. Full details are set out in Annex C on the treatment of income in care homes and other settings.

8.21a) As part of the Armed Forces Covenant, the government has committed to making sure veterans are not disadvantaged by their service and when appropriate receive special consideration. To support veterans injured on active service, payments to veterans under the War Pension Scheme, with the exception of Constant Attendance Allowance which is specifically intended to pay for care, must be disregarded in the assessment of what a veteran can pay for care from 10 April 2017. This brings payments to veterans under the War Pension Scheme into line with Guaranteed Income Payments under the Armed Forces Compensation Scheme which have been disregarded since October 2012.

'Light-touch' financial assessments

8.22 In some circumstances, a local authority may choose to treat a person as if a financial assessment had been carried out. In order to do so, the local authority must be satisfied on the basis of evidence provided by the person that they can afford, and will continue to be able to afford, any charges due. This is known as a 'light-touch' financial assessment.

8.23 The main circumstances in which a local authority may consider carrying out a light-touch financial assessment are:

1. a) Where a person has significant financial resources, and does not wish to undergo a full financial assessment for personal reasons, but wishes nonetheless to access local authority support in meeting their needs. In these situations the local authority may accept other evidence in lieu of carrying out the financial assessment and consider the person to have financial resources above the upper limit.

2. b) Where the local authority charges a small or nominal amount for a particular service (for example, for subsidised services) which a person is clearly able to meet and would clearly have the relevant minimum income left, and carrying out a financial assessment would be disproportionate.

3. c) When an individual is in receipt of benefits which demonstrate that they would not be able to contribute towards their care and support costs. This might include income from Jobseeker's Allowance.

8.24 Ways a local authority may be satisfied that a person is able to afford any charges due might include evidence that a person has either:

1. a) property clearly worth more than the upper capital limit, where they are the sole owner or it is clear what their share is

2. b) savings clearly worth more than the upper capital limit

3. c) sufficient income left following the charge due

8.25 Where the local authority is going to meet the person's needs, and it proposes to undertake a light-touch financial assessment, it should take steps to assure itself that the person concerned is willing, and will continue to be willing, to pay all charges due. It must also remember that it is responsible for ensuring that people are not charged more than it is reasonable for them to pay. Where a person does not agree to the charges that they have been assessed as being able to afford to pay under this route, a full financial assessment may be needed.

8.26 When deciding whether or not to undertake a light-touch financial assessment, a local authority should consider both the level of the charge it proposes to make, as well as the evidence or other certification the person is able to provide. They must also inform the person when a light-touch assessment has taken place and make clear that the person has the right to request a full financial assessment should they so wish, as well as making sure they have access to sufficient information and advice, including the option of independent financial information and advice.

Deprivation of assets and debts

8.27 People with care and support needs are free to spend their income and assets as they see fit, including making gifts to friends and family. This is important for promoting their wellbeing and enabling them to live fulfilling and independent lives. However, it is also important that people pay their fair contribution towards their care and support costs.

8.28 There are some cases where a person may have tried to deliberately avoid paying for care and support costs through depriving themselves of assets - either capital or income. Where a local authority believes they have evidence to support this, it must read Annex E concerning the deprivation of assets. In such cases, the local authority may either charge the person as if they still possessed the asset or, if the asset has been transferred to someone else, seek to recover the lost income from charges from that person. However, the local authority cannot recover more than the person gained from the transfer.

8.29 Where a person has accrued a debt, the local authority may use its powers under the Care Act to recover that debt. In deciding how to proceed, the local authority should consider the circumstances of the case before deciding a course of action. For example, a local authority should consider whether this was a deliberate avoidance of payment or due to circumstances beyond the person's control.

8.30 Ultimately, the local authority may institute County Court proceedings to recover the debt. However, they should only use this power after other reasonable alternatives for recovering the debt have been exhausted. Further details on how to pursue debts are set out in Annex D.

Charging for care and support in a care home

8.31 This section must be read in conjunction with Annex B on the treatment of capital and Annex C on the treatment of income in care homes.

8.32 Where a local authority has decided to charge and undertaken the financial assessment, it should support the person to identify options of how best to pay any charge. This may include offering the person a deferred payment agreement. In such cases, chapter 9 of the guidance must be considered.

8.33 Where a local authority is meeting needs by arranging a care home, it is responsible for contracting with the provider. It is also responsible for paying the full amount, including where a 'top-up' fee is being paid. However, where all parties are agreed it may choose to allow the person to pay the provider directly for the 'top-up' where this is permitted. In doing so it should remember that multiple contracts risk confusion and that the local authority may be unable to assure itself that it is meeting its responsibilities under the additional cost provisions in the Care Act. Local authorities must ensure they read the guidance at Annex A on the use of 'top-up' fees.

8.34 Where a person is a short-term or temporary resident there is a degree of discretion or modified charging rules to take account of this.

A short-term resident is someone provided with accommodation in a care home for a period not exceeding 8 weeks, for example where a person is placed in a care home to provide respite care. Where a person is a short-term resident a local authority may choose to assess and charge them based on the rules for care or support arranged other than in a care home.

A temporary resident is someone whose stay in a care home is unlikely to exceed 52 weeks or, in exceptional circumstances, is unlikely to substantially exceed 52 weeks. Because a temporary resident is expected to return home their main or only home is usually disregarded in the assessment of whether and what they can afford to pay. In addition, for example, certain housing-related costs are also disregarded in the financial assessment.

8.35 People in a care home will contribute most of their income, excluding their earnings, towards the cost of their care and support. However, a local authority must leave the person with a specified amount of their own income so that the person has money to spend on personal items such as clothes and other items that are not part of their care. This is known as the personal expenses allowance ( PEA). This is in addition to any income the person receives from earnings. Ministers have the power to adjust the PEA. Any changes are communicated by Local Authority Circular and are binding. Local authorities have discretion to apply a higher income allowance in individual cases, for example where the person needs to contribute towards the cost of maintaining their former home. Further detail is set out in Annex C.

Choice of accommodation

8.36 Where the care planning process has determined that a person's needs are best met in a care home, the local authority must provide for the person's preferred choice of accommodation, subject to certain conditions. This also extends to shared lives, supported living and extra care housing settings. Determining the appropriate type of accommodation should be made with the adult as part of the care and support planning process, therefore this choice only applies between providers of the same type.

8.37 The local authority must ensure that the person has a genuine choice of accommodation. It must ensure that at least one accommodation option is available and affordable within the person's personal budget and it should ensure that there is more than one of those options. However, a person must also be able to choose alternative options, including a more expensive setting, where a third party or in certain circumstances the resident is willing and able to pay the additional cost ('top-up'). However, an additional payment must always be optional and never as a result of commissioning failures leading to a lack of choice. Detailed guidance is set out in Annex A which a local authority must have regard to.

Charging for care and support in other care settings including a person's own home

8.38 This section should be read in conjunction with the regulations and Annex B on the treatment of capital and Annex C on the treatment of income in non-residential care.

8.39 These charging arrangements cover any setting for meeting care and support needs outside of a care home. For example, care and support received in a person's own home, and in other accommodation settings such as in extra care housing, supported living accommodation or shared lives arrangements.

8.40 The intent of the regulations and guidance is to support local authorities to assess what a person can afford to contribute towards their care costs. Local authorities should also consider how to use their discretion to support the principles of care and support charging.

8.41 This guidance does not make any presumption that local authorities will charge for care and support provided outside care homes, but enables them to continue to allow discretion.

8.42 Because a person who receives care and support outside a care home will need to pay their daily living costs such as rent, food and utilities, the charging rules must ensure they have enough money to meet these costs. After charging, a person must be left with the minimum income guarantee ( MIG), as set out in the Care and Support (Charging and Assessment of Resources) Regulation 2014. In addition, where a person receives benefits to meet their disability needs that do not meet the eligibility criteria for local authority care and support, the charging arrangements should ensure that they keep enough money to cover the cost of meeting these disability-related costs.

8.43 Additionally, the financial assessment of their capital must exclude the value of the property which they occupy as their main or only home. Beyond this, the rules on what capital must be disregarded are the same for all types of care and support. However, local authorities have flexibility within this framework; for example, they may choose to disregard additional sources of income, set maximum charges, or charge a person a percentage of their disposable income. This will help support local authorities to take account of local circumstances and promote integration and innovation.

8.44 Although local authorities have this discretion, this should not lead to 2 people with similar needs, and receiving similar types of care and support, being charged differently.

8.45 Local authorities should develop and maintain a policy on how they wish to apply this discretion locally. In designing this policy local authorities should consider the objectives of care and support charging and how it can:

8.46 Local authorities should consult people with care and support needs when deciding how to exercise this discretion. In doing this, local authorities should consider how to protect a person's income. The government considers that it is inconsistent with promoting independent living to assume, without further consideration, that all of a person's income above the minimum income guarantee ( MIG) is available to be taken in charges.

8.47 Local authorities should therefore consider whether it is appropriate to set a maximum percentage of disposable income (over and above the guaranteed minimum income) which may be taken into account in charges.

8.48 Local authorities should also consider whether it is appropriate to set a maximum charge, for example these might be set as a maximum percentage of care home charges in a local area. This could help ensure that people are encouraged to remain in in their own homes, promoting individual wellbeing and independence.

Charging for support to carers

8.49 Where a carer has eligible support needs of their own, the local authority has a duty, or in some cases a power, to arrange support to meet their needs. Where a local authority is meeting the needs of a carer by providing a service directly to a carer, for example a relaxation class or driving lessons, it has the power to charge the carer. However, a local authority must not charge a carer for care and support provided directly to the person they care for under any circumstances.

8.50 Local authorities are not required to charge a carer for support and indeed in many cases it would be a false economy to do so. When deciding whether to charge, and in determining what an appropriate charge is, a local authority should consider how it wishes to express the way it values carers within its local community as partners in care, and recognise the significant contribution carers make. Carers help to maintain the health and wellbeing of the person they care for, support this person's independence and enable them to stay in their own homes for longer. In many cases of course, carers voluntarily meet eligible needs that the local authority would otherwise be required to meet. Local authorities should consider carefully the likely impact of any charges on carers, particularly in terms of their willingness and ability to continue their caring responsibilities. It may be that there are circumstances where a nominal charge may be appropriate, for example to provide for a service which is subsidised but for which the carer may still pay a small charge, such as a gym class. Ultimately, a local authority should ensure that any charges do not negatively impact on a carer's ability to look after their own health and wellbeing and to care effectively and safely.

8.51 While charging carers may be appropriate in some circumstances, it is very unlikely to be efficient to systematically charge carers for meeting their eligible needs. This is because excessive charges are likely to lead to carers refusing support, which in turn will lead to carer breakdown and local authorities having to meet more eligible needs of people currently cared for voluntarily. As an example, work carried out by Surrey County Council found that if even 10% of people with care and support needs in families supported by carers presented to the council with eligible needs as a result of carer breakdown, the resulting cost would be 3 times the current total budget for carer support. The ADASS produced the Economic Case for Investment in Carers, a short factsheet for local authorities to use in considering whether to put in place a policy of charging carers, setting out the evidence that charging would be a false economy.

8.52 Local authorities may also wish to consider whether charging is proportionate when carers' assessments are undertaken for small scale help. There is a risk that financial assessments might become the most costly part of the process and something that is administratively burdensome.

8.53 Where a local authority takes the decision to charge a carer, it must do so in accordance with the non-residential charging rules. In doing so, it should usually carry out a financial assessment to ensure that any charges are affordable. However, it may be more likely, in the case of a carer, that the carer and the local authority will agree that a full financial assessment would be disproportionate as carers often face significantly lower charges.

8.54 In such cases, a local authority may choose to treat a carer as if a financial assessment has been carried out. When deciding whether or not to undertake a light-touch financial assessment, a local authority should consider both the level of the charge it proposes to make as well as the evidence the person is able to provide that they will be able to afford the charge. They must also inform the person when a light-touch assessment has taken place and make clear from the outset that the person has the right to request a full financial assessment should they so wish.

8.55 A carer's assessment may identify that the carer's needs for support could be met by arranging time away from the person they care for, for instance so that they can stay on top of other aspects of their lives, and that in order to achieve this services need to be provided to support the cared-for person in their absence. Such services would be provided direct to the cared-for person, even though they may meet the needs of both parties and may have been identified through the carer's assessment. The local authority may not charge the carer for these services, and any charges should be based on the local authority's policy on charging for non-residential care and support.

Requesting local authority support to meet eligible needs

8.56 People with eligible needs and financial assets above the upper capital limit may ask the local authority to meet their needs. This could be for a variety of reasons such as the person finding the system too difficult to navigate, or wishing to take advantage of the local authority's knowledge of the local market of care and support services. Where the person asks the local authority to meet their eligible needs, and it is anticipated that their needs will be met by a care home placement, then the local authority may choose to meet their needs, but is not required to do so. In other cases, where the needs are to be met by care and support of some other type, the local authority must meet those eligible needs.

8.57 Local authorities should therefore take steps to make people aware that they have the right to request the local authority to meet their needs, in certain circumstances even when they have resources above the financial limits and would not be entitled to financial support with any charges. They should also be clear that this right does not extend to needs met by a care home placement, although local authorities may choose to apply the same approach locally. Local authorities should also offer support to people in meeting their own needs, including providing information and advice on different options, and may offer to arrange contracts with providers.

8.58 Where the person's resources are above the financial limit, the person's entitlement to local authority support in meeting their needs may be dependent on the request having been made. Therefore it is important that the person, and any carer, advocate or other person they wish to involve, are aware of this ability and the consequences for their care and support. The local authority must make clear to the person that they may be liable to pay an arrangement fee in addition to the costs of meeting their needs to cover the costs of putting in place the care and support required.

8.59 Arrangement fees charged by local authorities must cover only the costs that the local authorities actually incur in arranging care. Arrangement fees should take account of the cost of negotiating and/or managing the contract with a provider and cover any administration costs incurred. Where a local authority chooses to meet the needs of a person with resources above the financial limit who requires a care home placement, it must not charge an arrangement fee. This is because it would support that person under its power (rather than its duty) to meet needs, and the ability to charge the arrangement fee applies only to circumstances when the authority is required to meet needs.

8.60 Local authorities must not charge people for a financial assessment, a needs assessment or the preparation of a care and support plan.

8.61 It may be appropriate for local authorities to charge a flat rate fee for arranging care. This can help ensure people have clarity about the costs they will face if they ask the local authority to arrange their care. However, such flat rate costs must be set at a level where they do not exceed the costs the local authority actually incurs.

8.62 The information provided to the person following a financial assessment should include information on the right to request the local authority to meet their needs - and how they would be charged - and the advice and support that is available to help people make arrangements to meet their own needs whatever type of support they require.

8.63 A local authority will be under a duty to meet a person's eligible needs when requested to do so and their needs are to be met by care and support other than in a care home. However, where the person has resources above the financial limits the local authority may charge the person for the full cost of their care and support. In such circumstances, the person remains responsible for paying for the cost of their care and support, but the local authority takes on the responsibility for meeting those needs. This means that the local authority may for example provide or arrange care and support, or make a direct payment which may be a paper based exercise, or some combination of these. Further information on how, to 'meet needs' and the options available is provided in chapter 10.

8.64 The local authority must assure itself that whilst the person remains responsible for paying for their own care, they have sufficient assets for the arrangements that it puts in place to remain both affordable and sustainable. The local authority should also take steps to avoid disputes and additional liabilities by securing a person's agreement in writing to pay the costs that they are responsible for in meeting their needs, including payments to providers. Local authorities should make similar arrangements with any third parties that agree to contribute towards these costs.

Pension reforms

8.65 Reforms to defined contribution pensions came into effect from April 2015. The aim of the reforms is to provide people with much greater flexibility in how they fund later life. The government expects there to be a range of new products that people will use to manage and access money from their pensions as and when they need it, and where possible, these should be treated similarly to existing drawdown products for charging purposes.

8.66 The Pension wise service helps people to make informed choices at the point of retirement. This will include information and advice on later life, including the risk that they may need care and support in the future, and will have to pay for it.

8.67 For the purposes of charging, a local authority must follow the guidance set out on the treatment of income and capital in Annexes B and C and treat a person's assets accordingly. Where a person has chosen to withdraw funds from their pension pot and manage it directly, for example combining it with other assets rather than through a pensions product, this may be treated as capital under the rules laid out in Annex B.

Complaints

8.68 A person may wish to make a complaint about any aspect of the financial assessment or how a local authority has chosen to charge. A local authority must make clear what its complaints procedure is and provide information and advice on how to lodge a complaint.

8.69 Complaints about the level of charge levied by a local authority are subject to the usual care and support complaints procedure as set out in The Local Authority Social Services and NHS Complaints (England) Regulations 2009.

8.70 Where a local authority has established a special panel or fast track review processes to deal with financial assessment/charging issues, they should remind the person that they still have access to the statutory complaints procedure.

9. Deferred payment agreements

This chapter provides guidance on:

sections 34-36 of the Care Act 2014

the Care and Support (Deferred Payment) Regulations 2014 (as amended by the Care and Support (Deferred Payment)(Amendment) Regulations 2017) [see note 1]

This chapter covers:

Note 1

The legislation that underpinned deferred payment agreements ( DPAs) did not work as intended. It meant that local authorities ( LAs) in England were not required to offer DPAs to eligible individuals unless they were meeting that individual's needs or believed they would meet their needs if asked. We therefore made amendments to the Care and Support (Deferred Payment) Regulations 2014 so that LAs are now required to enter into a 'loan-type' DPA with individuals who qualify for one but whose needs the LA is not meeting. This chapter was amended on 12 February 2018 to reflect these changes in the law and to provide greater clarity on the types of DPAs that can be offered (see paragraphs 9.3, 9.7 and 9.10 to 9.13).

Definitions

9.1 'Care costs' - all costs charged to a person by a care provider, including any top-ups and core care costs. This includes the costs associated with the provision of supported accommodation.

9.2 'Top ups' - this term has the usual meaning accorded to it within the care and support sector, but for the avoidance of doubt, top ups are costs due to a local authority under Section 30 of the Care Act or costs for the provision of the type of care referred to in Section 34(3)(a) of the Care Act.

Introduction

9.3 The establishment of the universal deferred payment scheme means that people should not be forced to sell their home in their lifetime to pay for their care. By entering into a deferred payment agreement, a local authority agrees to:

defer the payment of charges due to it from the adult, for the costs of meeting needs in a care home or supported living accommodation

or

defer the repayment of a loan to the adult in instalments, to cover the costs of care and support in a care home or supported living accommodation

Deferring payment can help people to delay the need to sell their home, and provides peace of mind during a time that can be challenging (or even a crisis point) for them and their loved ones as they make the transition into care.

9.4 A deferred payment agreement can provide additional flexibility for when and how someone pays for their care and support. It should be stressed from the outset that the payment for care and support is deferred and not 'written off'. The costs of provision of care and support will have to be repaid by the individual (or a third party on their behalf) at a later date.

9.5 The scheme is universally available throughout England, and local authorities are required to offer deferred payment agreements to people who meet certain criteria governing eligibility set out in paragraph 9.7 below (the qualifying criteria) for the scheme. Local authorities need to ensure that adequate security is in place for the amount being deferred, so that they can be confident that the amount deferred will be repaid in the future. Local authorities are also encouraged to offer the scheme more widely to anyone they feel would benefit who does not fully meet the criteria.

9.6 A deferral can last until death. However, many people choose to use a deferred payment agreement as a 'bridging loan' to give them time and flexibility to sell their home when they choose to do so. This is entirely up to the individual to decide. Further details on deferred payment agreements are set out in the sections below.

Who to offer deferred payment agreements to

Qualifying criteria for deferred payment agreements

9.7 Deferred payment agreements are designed to prevent people from being forced to sell their home in their lifetime to meet the cost of their care. Local authorities must offer them to people who meet the criteria below and who are able to provide adequate security (see section entitled 'Obtaining Security' below). Subject to these criteria they must offer them to people who have their needs met by the local authority, and also people who meet their own needs. The regulations provide that someone must be offered a deferred payment agreement if they meet all of the following criteria at the point of applying for a deferred payment agreement. Broadly, they are that the:

1. a) person is ordinarily resident in the local authority area or present in the area but of no settled residence; or ordinarily resident in another local authority area but the local authority has determined that they will or would meet the individual's care needs under section 19 of the Care Act if asked to do so [see note 2]

2. b) person has needs which are to be met by the provision of care in a care home. This is determined when someone is assessed as having care and support needs [see note 3] which the local authority considers should be met through a care home placement

3. c) person has less than (or equal to) £23,250 in assets excluding the value of their main or only home (for example, in savings, other non-housing assets and housing assets other than their main or only home)

4. d) person's home is not disregarded [see note 4]; for example, it is not occupied by a spouse or dependent relative as defined in regulations on charging for care and support (for example, someone whose home is taken into account in the local authority financial assessment and so might need to be sold)

Note 2

Where a local authority is meeting an individual's care and support needs under section 19(2) of the Care Act.

Note 3

When someone is arranging their own care and support and the authority has not performed an assessment, this condition is satisfied when someone would be assessed as having eligible needs were the authority to have carried out such an assessment.

Note 4

Disregarded for the purposes of the financial assessment carried out under section 17 of the Act.

9.8 As well as providing protection for people facing the prospect of having to sell their home to pay for care, deferred payment agreements can offer valuable flexibility, giving people greater choice over how they pay their care costs. Local authorities are, at their discretion, permitted to be more generous than these criteria and offer deferred payment agreements to people who do not meet criteria b, c or d in section 9.7. In deciding whether someone who does not meet all of the criteria above should still be offered a deferred payment, some considerations a local authority may wish to take into account include (but are not limited to):

1. a) whether meeting care costs would leave someone with very few accessible assets (this might include assets which cannot quickly or easily be liquidated or converted to cash)

2. b) if someone would like to use wealth tied up in their home to fund more than just their core care costs and purchase affordable top-ups (see further guidance on 'How much can be deferred', paragraph 9.36)

3. c) whether someone has any other accessible means to help them meet the cost of their care and support

4. d) if a person is narrowly not entitled to a deferred payment agreement given the criteria above, for example because they have slightly more than the £23,250 asset threshold. This should include people who are likely to meet the criteria in the near future

9.9 Local authorities may also at their discretion enter into deferred payment agreements with people whose care and support is provided in supported living accommodation. The local authority should not exercise this discretion unless the person intends to retain their former home and pay the associated care and accommodation rental costs from their deferred payment. Further details on precisely what qualifies as supported living accommodation are set out in regulations. Deferred payment agreements cannot be entered into to finance mortgage payments on supported living accommodation.

Types of deferred payment agreement

9.10 Deferred payment agreements can take 2 forms:

the local authority pays the care home or supported living accommodation directly and defers the charges due to it from the individual (traditional type)

the individual pays the care provider for their care and the local authority loans them the cost of care in instalments less any contributions the individual contributes from other sources (loan type)

9.11 When considering their approach as to when or whether to offer loan or traditional type deferred payment agreements, local authorities should have regard to their duties under the Care Act, including their duties under the well-being principle and their market duties. Local authorities cannot refuse to enter into a loan-type deferred payment agreement if the qualifying criteria are met and the individual requests it (subject to paragraphs 9.14 to 9.17 below).

9.12 The local authority must comply with all relevant legislation and act under the guidance.

9.13 In all cases, a local authority is only required to enter into a deferred payment agreement to cover the costs of care and support which it considers necessary.

Permission to refuse a deferred payment agreement

9.14 A local authority must offer a deferred payment to someone meeting the qualifying criteria for deferred payment agreements and who is able to provide adequate security for the debt (obtaining a first land registry charge on their property, see 'Obtaining security' at paragraph 9.58); and may offer a deferred payment agreement to others who do not meet the criteria, at their discretion.

9.15 There are, however, certain circumstances in which a local authority may refuse a request for a deferred payment agreement ('permission to refuse'), even if a person meets the qualifying criteria and the local authority would otherwise be required to offer the person an agreement. This permission (or discretion) to refuse is intended to provide local authorities with a reasonable safeguard against default or non-repayment of debt.

9.16 A local authority may refuse a deferred payment agreement despite someone meeting the qualifying criteria:

1. a) where a local authority is unable to secure a first charge on the person's property

2. b) where someone is seeking a top up [see note 5]

3. c) where a person does not agree to the terms and conditions of the agreement, for example a requirement to insure and maintain the property

Note 5

In these situations, a local authority should still seek to offer a deferred payment agreement but should be guided by principles in the section 'How much to defer', to determine a maximum amount that is sustainable (or reflects their core care costs without any top-ups) and agree a deferral. The person can then choose whether they wish to agree

9.17 In any of the above circumstances, a local authority should consider whether to exercise its discretion to offer a deferred payment anyway (for example, if a person's property is uninsurable but has a high land value, the local authority may choose to accept charges against this land as security instead).

Circumstances in which local authorities may stop deferring care costs or making payments under a loan-type agreement

9.18 There are also circumstances where a local authority may refuse to defer or loan any more charges for a person who has an active deferred payment agreement. Local authorities cannot demand repayment in these circumstances, and repayment is still subject to the usual terms of termination, as set out in the section entitled 'termination of the agreement' below.

9.19 The local authority should provide a minimum of 30 days' advance notice that further deferrals or loans will cease; and should provide the person with an indication of how their care costs will need to be met in future. Depending on their circumstances, the person may either receive local authority support in meeting the costs of their care, or may be required to meet their costs from their income and assets. Local authorities exercising these powers to cease deferring additional amounts should consider their decision to do so whilst considering the person's circumstances and their overarching duties under the well-being principle.

9.20 Circumstances in which a local authority may refuse to defer or loan any more charges include[footnote 25]:

1. a) when a person's total assets fall below the level of the means-test (see chapter 8), and the person becomes eligible for local authority support in paying for their care

2. b) where a person no longer has need for care in a care home (or where appropriate supported living accommodation)

3. c) if a person breaches certain predefined terms of their contract (which must be clearly set out in the contract) and the local authority's attempts to resolve the breach are unsuccessful and the contract has specified that the authority will stop making further payments in such a case

4. d) if, under the charging regulations (see also chapter 8), the property becomes disregarded for any reason and the person consequently qualifies for local authority support in paying for their care, including but not limited to:

1. (i) where a spouse or dependent relative (as defined in charging regulations) has moved into the property after the agreement has been made, where this means the person is eligible for local authority support in paying for care and no longer requires a deferred payment agreement

2. (ii) where a relative who was living in the property at the time of the agreement subsequently becomes a dependent relative (as defined in charging regulations). The local authority may cease further deferrals at this point

9.21 Local authorities should not exercise these discretionary powers if a person would, as a result, be unable to pay any tariff income due to the local authority from their non-housing assets.

9.22 Local authorities must also cease deferring or loaning further amounts when a person has reached the 'equity limit' that they are allowed to defer (see 'how much can be deferred' below); or when a person is no longer receiving care and support in either a care home setting or in supported living accommodation. This also applies when the value of the security has dropped and so the equity limit has been reached earlier than expected. [footnote 26]

Case study 1

Lucille develops a need for a care home placement. She lives alone and is the sole owner of her home. Her home is valued at £165,000, and she has £15,000 in savings. Lucille meets the qualifying criteria for a deferred payment.

Information and advice

9.23 Under the Care Act, local authorities have responsibilities to provide information and advice about people's care and support. These extend to deferred payment schemes as well. This chapter should be read in combination with chapter 3 ('Information and Advice').

9.24 In order to be able to make well-informed choices, it is essential that people access appropriate information and advice before taking out a deferred payment agreement ( DPA). It is also important that people are kept informed about their DPA throughout the course of the agreement, and that they (and the executor of their estate where appropriate) receive the necessary information upon termination of the agreement.

9.25 Information and advice requirements prior to taking out a DPA are discussed in this section; requirements on local authorities while the DPA is in place are discussed in a separate section below (see 'the local authority's responsibilities whilst the agreement is in place'); and the section entitled 'termination of the agreement' addresses the responsibilities on the local authority when the agreement is concluded. The requirements on local authorities to offer and facilitate access to financial information and advice on other options for paying for care are discussed in chapter 3.

9.26 Deferred payment agreements are often made during a time that is demanding for a person and their loved ones - a period when they are making a transition into a care home. People may need additional support during this period, and the local authority has a role in providing this support and facilitating their transition, particularly if their transition to care is made rapidly and/or at an unexpected point. The local authority must provide information in a way which is clear and easy to understand, and it should be designed to ease the process of transition for people, their carers and their families.

9.27 Carers and families often assist people in making decisions about their care and how they pay for it. Local authorities should as appropriate invite carers and/or families to participate in discussions, and should also provide them with all the information that would otherwise be given to the person they care for, subject (where required)[footnote 29] to the consent of the person with care and support needs (if they have capacity) or someone else with appropriate authorisation. In doing this, they must ensure compliance with mental capacity and data protection legislation, and the other duties pertaining to information and advice set out in chapter 3 of this guidance.

9.28 As a deferred payment agreement can take some time to set up and agree, it is important that both the local authority and the individual consider any potential issues around mental capacity. Where a person may lack capacity to request a deferred payment, a deputy or attorney (a person with a relevant enduring power of attorney or lasting power of attorney) may request a deferred payment on their behalf. If a family member requests a deferred payment and they do not have the legal power to act on behalf of the person, then the person and the family member should receive information and advice on how to obtain this, through lasting power of attorney and deputyships. Where the local authority is the deputy for a person, then the local authority deputy may apply for deferred payments where this is in the best interests of the person. Local authorities must not enter into deferred payment agreements with a person lacking the requisite mental capacity unless the proper arrangements are in place.

9.29 Local authorities and the person applying for a deferred payment (who has capacity) may also want to consider any potential issues around loss of capacity. The local authority should where appropriate provide the person with information and advice on options for deputyship, legal power of attorney and advocacy. If a local authority and the person do discuss the issue, the local authority should confirm what would happen were the person to lose capacity and not have made their own arrangements. Further advice on capacity and financial arrangements is contained in the guidance on debt recovery in Annex D (a deferred payment being effectively a consensually-accruing debt to the local authority).

9.30 If a local authority identifies someone who may benefit from or be eligible for a DPA or a person approaches them for information, the local authority must tell them about the DPA scheme and how it works. This explanation should, at a minimum:

set out clearly that the fees are being deferred or delayed and must still be paid back at a later date, for example through the sale of the home (potentially after the individual's death)

explain the types of security that a local authority is prepared to accept (as set out by each local authority in a publicly - available policy; see the section entitled 'Obtaining Security' below for further details)

explain that if a home is used as security, the home may need to be sold at a later date to repay the amount due

explain that the total amount they can defer will be governed by an equity limit (discussed in the section entitled 'How much can be deferred' below) which may change if the value of their security changes

explain the circumstances where the local authority may cease to defer further amounts (such as when the person qualifies for local authority support in paying for their care), and the circumstances where the local authority has to stop deferring further amounts (such as when the person reaches their equity limit)

explain if and how interest will be charged on any amount deferred

explain that they may be liable to pay administrative charges

explain what happens on termination of the agreement, how the loan becomes due and their options for repayment

explain what happens if they do not repay the amount due

set out the qualifying criteria for a DPA

detail the requirements that must be adhered to during the course of the DPA

explain the implications that a deferred payment agreement may have on their income, their benefit entitlements, and charging

provide an overview of some potential advantages and disadvantages of taking out a DPA, and explain that there are other options for paying for their care that they may wish to consider

note the existence of the 12-week disregard, which will afford those who qualify for it some additional time to consider their options in paying for care

suggest that people may want to consider taking independent financial advice (including flagging the existence of regulated financial advice), in line with the guidance set out in chapter 3

9.31 Local authorities should provide easy to read information about how the scheme works. This may be in the form of a standardised information sheet.

9.32 Local authorities must provide this information and advice in formats that ensure compliance with the requirements of the Equality Act 2010 (in particular, they must ensure where appropriate that the information is accessible to the sensory impaired, people with learning disabilities, and people for whom English is not their first language). Further clarifications on information and advice requirements are detailed in chapter 3.

9.33 Where relevant, local authorities should provide information and advice on DPAs at the earliest appropriate opportunity during the period of the 12-week disregard[footnote 28]. Local authorities should aim to ensure that people are able to make a smooth transition from the 12-week disregard to the DPA if they opt to enter into an agreement. This means ensuring as far as possible that a DPA is available by the first day of week 13.

9.34 Local authorities should advise people (where appropriate) that they will need to consider how they plan to use, maintain and insure their property if they take out a DPA; that is whether they wish to rent, to prepare for sale, or to leave it vacant for a period. The local authority should advise if it intends to place conditions on how the property is maintained whilst the DPA is in place (authorities will usually include requirements for people to maintain and insure their homes in the terms and conditions of a deferred payment agreement; see the section entitled 'Making the Agreement' for further details).

9.35 Local authorities should develop basic information and advice for homeowners on how they may choose to use their property when they enter care, for example information on how they may go about renting their property, and the potential impact on other people living in the property if a sale is required after their death. They should signpost people to more specialist organisations who can provide further advice on this issue, including information about their legal responsibilities as landlords and their obligations to any potential tenants.

Case study 2

Lucille's son Buster has been providing informal care and support to her, and has heard of the deferred payments scheme. When Lucille decides she may benefit from a care home placement, her son suggests they approach her local authority together for information and advice about deferred payment agreements.

Her local authority provides them both with a printed information sheet setting out further details on the authority's deferred payment scheme, and also provides them with contact details of some national and local services who provide financial information and advice

Lucille is interested in renting her property whilst residing in a care home. The local authority has an existing housing advice service, so signposts Lucille to them for further advice on lettings. The local authority's standard information sheet also includes information on how her rental income may be used to pay for her care and support.

How much can be deferred?

9.36 In principle, a person should be able to defer the entirety of their care costs; subject to any contribution the local authority is allowed to require from the person's income. The local authority will need to consider whether a person can provide adequate security for the deferred payment agreement (see next section entitled 'Obtaining Security' - usually this requirement for 'adequate security' will be fulfilled by securing their deferred payment agreement against their property).

9.37 If the person is considering a top-up, the local authority should also consider whether the amount or size of the deferral requested is sustainable given the equity available from their chosen form of security. A discussion of sustainability may be helpful in all cases to ensure the person is aware of how much care their chosen form of security would afford them.

9.38 Three elements will dictate how much a person will defer, each of which is discussed below:

1. a) The amount of equity a person has available in their chosen form of security (usually their property)

2. b) The amount a person is contributing to their care costs from other sources, including income and (where they choose to) any contribution from savings, a financial product or a third-party

3. c) The total care costs a person will face, including any top-ups the person might be seeking

9.39 Local authorities should also satisfy themselves that any top-up they agree to is sufficiently sustainable. Some guidance for local authorities in assessing whether a top-up is sustainable is provided below.

Equity Limit

9.40 When considering the equity available, local authorities must be guided by an 'equity limit' for the total amount that can be deferred and ensure that the amount deferred does not rise above this limit. The equity limit will leave some equity remaining in the security used for the DPA - this will both act as a buffer to cover any subsequent interest which continues to accrue, and will provide a small 'cushion' in case of small variations in value of the security. In the majority of cases a property will be used as security, so the equity limit will provide a cushion against changes in house prices. When calculating progress towards the equity limit, the local authority must also include any interest and/or fees to be deferred.

9.41 If the person intends to secure their deferred payment agreement with a property, local authorities must obtain a valuation of the property. Reasonable property valuation costs are included in the list of administration charges that local authorities can pass on to people, should they wish to do so. People may request an independent assessment of the property's value (in addition to the local authority's valuation). If an independent assessment finds a substantially differing value to the local authority's valuation, the local authority and person should discuss and agree an appropriate valuation prior to proceeding with the agreement.

9.42 Where a property is used as security to offer a deferred payment agreement, the equity limit must be set at the value of the property minus 10%, minus £14,250 (for financial year 2015 to 2016, this is in line with the lower capital limit) and the amount of encumbrance secured on it. This limit provides some protection to local authorities against changes in the value of the security (such as possible house price fluctuations) and the risk that they may not be able to recoup the full amount owed, but also should mean that people qualify for local authority support if they deplete the equity available in their property (and are consequently not at risk of having to sell their home to pay for care).[footnote 29]

9.43 Local authorities should, when someone is approaching or reaches the point at which they have deferred 70% of the value of their chosen security, review the cost of their care with the person, discuss when the person might be eligible for any means tested support, discuss the implications for any top-up they might currently have, and consider jointly whether a deferred payment agreement continues to be the best way for someone to meet these costs.

9.44 The following example illustrates the equity limit principle.

Case study 3: The equity limit

Lucille decides to secure her deferred payment agreement with her house, which is worth £165,000. The amount of equity available will be the value of the property minus 10%, minus a further £14,250 (the lower capital limit).

£165,000 - £16,500 - £14,250 = £134,250

Therefore, her 'equity limit' for the total amount she could defer would consequently be £134,250, which would leave £30,750 in equity in her home.

9.45 Local authorities must not allow additional amounts to be deferred beyond the equity limit, and must refuse to defer care costs beyond this (see section above entitled 'permission to refuse'). However, interest can still accrue beyond this point, and administrative charges can still be deferred.

Contributing to care costs from other sources

9.46 A person may meet the costs of their care and support from a combination of any of 4 primary sources:

9.47 The share of care costs that someone defers will depend on the amount they will be paying from the other sources listed above.

9.48 Local authorities may require a contribution towards care costs from a person's income, but the person has a right to retain a proportion of their income (the 'disposable income allowance'). The disposable income allowance is a fixed amount (up to £144 per week) of a person's income which the local authority must allow the person to retain (if the person wants to retain it). The local authority can require the person to contribute the rest of their income, but must allow the person to retain as much of their disposable income allowance as they want to.

9.49 A person may choose to keep less of their income than the disposable income allowance. This might be advantageous to the person as they would be contributing more to the costs of their care from their income, and consequently reducing the amount they are deferring (and accruing less debt to their local authority overall). However this must be entirely at the individual's decision and the local authority must not compel someone to retain less than the disposable income allowance if the person wants to retain the full amount.

9.50 If a person decides to rent out their property during the course of their DPA, a local authority should permit that person to retain a percentage of any rental income they possess. Local authorities may want to consider whether to offer other incentives to individuals to encourage rental of properties, though the decision as to whether or not to rent a property must be the person's and theirs alone.

9.51 A person may also contribute to their care costs from payments by a third party (including any contributions available from a financial product) or from their savings. Contributing to care costs from another source would be beneficial for a person as it would reduce the amount they are deferring (and hence reduce their overall debt to the local authority). A local authority must not compel a person to contribute to their deferral from these sources.

Case study 4

Lucille identifies a care home placement that meets her care and support needs, costing £540 per week. She has an income provided by her pension of £230 per week. Lucille decides not to rent her home as she intends to sell it within the year.

Based on this provisional estimate of her care costs, Lucille would contribute £86 (230 -144) per week from her income, and her weekly deferral would be £454.

Care costs

9.52 Before considering in detail how much they will be deferring, a person and usually the local authority should have a rough idea of their likely care costs as a result of the care planning process. Someone may wish to vary their care package (or any top-ups they may be considering) following consideration of what they could afford with a deferred payment agreement, but should approach the process with an approximate idea of what their care costs are likely to be.

9.53 In principle, people should be able to defer their full care costs including any top-ups.[footnote 32] At a minimum, when local authorities are required to offer a deferred payment agreement they must allow someone to defer their 'core' care costs. To ensure sustainability of the deferral, local authorities have discretion over the amount people are permitted to top-up.[footnote 33] Local authorities should consider any request for top-ups, but retain discretion over whether or not to agree to a given top-up. Local authorities should accept any top-up deemed to be reasonable given considerations of affordability, sustainability and available equity. Local authorities should be mindful of the duties set out in relation to top-ups and additional costs in the care and support and aftercare (Choice of Accommodation) regulations 2014.

Sustainability

9.54 When deciding on the amount to be deferred in a discretionary deferred payment agreement (particularly when considering top-ups), both parties should consider a range of factors to satisfy themselves that the arrangement is sustainable including:

the likely period the person would want a DPA for (if they intend to use it as a 'bridging loan');

the equity available

the sustainability of a person's contributions from their savings (if they are making one)

the flexibility to meet future care needs

the period of time a person would be able to defer their care costs for

9.55 Deferred payment agreements should prevent people from having to sell their home in their lifetime to pay for their care. Local authorities should discuss with the person the projected limit of what their equity could cover, given their projected care costs, and how their care costs might change over time. This may include a discussion of when they are likely to reach any of the income thresholds and may begin to qualify for local authority support in paying for their care. If the person is requesting a top-up, it is important that the local authority discusses what might happen to any top-up requested if the person reaches the equity limit and moves on to local authority support in paying for their care, and ensures that a written agreement is in place (see Annex A: Choice of accommodation and additional payments). In particular, the local authority should make the person aware that once they have reached the equity limit, the local authority may not be willing to fund their top-up, and the person may need to find other ways to pay for it or be prepared for a change in their care package.

9.56 Local authorities and individuals should also consider the length of time that a person's intended contribution to care costs from savings would last, if they intend to contribute to their care costs from their savings. This should include consideration of the impact on their care if a person's savings are depleted (normally this would involve increasing the amount the person is deferring).

9.57 An important factor in the sustainability of a deferred payment agreement will be any future care and support needs someone might face, and local authorities and people should consider allowing flexibility for changes in circumstance, including possible escalations of needs, when deciding how much someone should defer. Local authorities and people should factor any potential changes in circumstances into their considerations of sustainability.

9.58 The department has developed a tool to aid local authorities in assessing sustainability. Local authorities may use this tool to aid discussions and decisions about the amount to be deferred, but local authorities retain final responsibility for (and have discretion over) decisions taken about the agreements they enter into.

9.59 When agreement has been reached between a person and the local authority as to how much they want to defer, the local authority must ensure this is clearly and unambiguously set out in the deferred payment agreement. Further details on what happens once an amount has been agreed are set out in the section entitled 'making the agreement' below.

9.60 The amount being deferred should be reviewed on a regular basis to ensure the deferred amount does not exceed the equity limit as discussed above.[footnote 32] Local authorities should have particular regard to the amount deferred as it approaches the equity limit.

9.61 Further details of local authorities' responsibilities during the course of the DPA are set out in the relevant section below.

Case study 5

Lucille discusses her care home fees with the local authority. Based on the equity available in her home (£134,250, as set out in Case study 3 above), Lucille could afford her weekly deferral of £454 for around 5 years. Given an average length of stay in a care home care of 19.7 months (source: BUPA 2010, cited in Laing and Buisson 2012/13), the local authority deems her projected care costs to be sustainable.

Lucille enquires as to the cost of a room with a garden view. This would increase her weekly deferral to £525 which she could afford for around four and a half years. The local authority deems this to be sustainable, so agrees to Lucille's requested top-up.

Obtaining security

9.62 A local authority must have adequate security in place when entering into a deferred payment agreement. The regulations set out one form of security that local authorities must accept, and also provide wider discretion for local authorities to accept other forms of security as they see fit. Local authorities should consider whether another type of security could be provided if a person cannot secure their deferred payment agreement with a charge on a property.

9.63 One form of 'adequate security' would be the local authority securing a first legal mortgage charge against a property on the Land Register. Local authorities must accept a first legal mortgage charge as adequate security and local authorities must offer a deferred payment to someone who meets the qualifying criteria for the scheme where the local authority is able to secure a first legal mortgage charge on the property.

9.64 In cases where an agreement is to be secured with a jointly-owned property, local authorities must seek both owners' consent (and agreement) to a charge being placed on the property. Both owners will need to be signatories to the charge agreement, and the co-owner will need to agree not to object to the sale of the property for the purpose of repaying the debt due to the local authority (following the same procedure as in the case where an individual is the sole owner of a property).

9.65 The local authority must obtain similar consent to a charge being created against the property from any other person who has a beneficial interest in the property.

9.66 Under the discretionary scheme, local authorities have discretion to decide what else may constitute 'adequate security' for a deferred payment agreement, in cases where a first charge cannot be secured. A local authority's decision should be based on an explicit and publicly-accessible policy of what other types of security they are willing to consider in addition to a first charge, but local authorities may consider the merits of each case individually. Other forms of security a local authority may choose to consider include (but are not limited to):

9.67 A local authority has full discretion in individual cases to refuse a deferred payment agreement if it is not satisfied that adequate security is in place.[footnote 33]

9.68 The security should also be revalued when the amount deferred equals or exceeds 50% of the value of the security to assess any potential change in the value (and consequently the person's 'equity limit' should be reassessed in turn). After this revaluation, local authorities should revalue the security periodically to monitor any potential further changes in value. If in either case there has been any substantial change the local authority should review the amount being deferred as well, as set out in the section 'how much can be deferred' above.

Interest rate and administration charge

9.69 The deferred payment agreement scheme is intended to be run on a cost-neutral basis, with local authorities able to recoup the costs associated with deferring fees by charging interest. Local authorities can also recoup the administrative costs associated with DPAs, including legal and ongoing running costs, via administration charges which can be passed on to the individual. Administration charges and interest can be added on to the total amount deferred as they are accrued, although a person may request to pay these separately if they choose. The agreement must make clear that all fees deferred, alongside any interest and administrative charges incurred, must be repaid by the person in full. The local authority must also notify the individual in writing whenever they are liable for an administration charge.

9.70 Local authorities will have the ability to charge interest on any amount deferred, including any administration charge deferred. This is to cover the cost of lending and the risks to local authorities associated with lending, for example the risk of default. Where local authorities charge interest this must not exceed the maximum amount specified in regulations. A local authority may (but is not required to) charge the nationally-set maximum interest rate. The same interest rate must be charged on all deferred payments within a local authority.[footnote 34]

9.71 The national maximum interest rate will change every 6 months on 1st January and 1st July. It will track the market gilts rate specified in the most recently published report by the Office of Budget Responsibility ( OBR) plus a 0.15% default component. For example, gilt rate 1% plus 0.15% equals a maximum interest rate of 1.15%. The market gilt rate is currently published in the Economic and Fiscal Outlook, which is usually published twice-yearly on the OBR website. The figures can be found in the 'Determinants of the fiscal forecast' table, in the Economic and Fiscal Outlook.

Local authorities must ensure that any changes to the national maximum rate are reflected within their authority and are applied to any agreements they have entered into (unless they are already charging less than the national maximum). Individual agreements must also contain adequate terms and conditions to ensure that the interest rate within any given agreement does not exceed the nationally set maximum.

9.72 In extremely rare circumstances (such as a severe economic shock), government may need to make new regulations to change the maximum interest rate which local authorities are permitted to charge before the next January or July change date. These powers would only be exercised as a last resort.

9.73 Local authorities must inform people before they make the agreement if interest will be charged, what interest rates are currently set at, and when interest rates are likely to change. This is to enable people to make well-informed decisions about whether a deferred payment agreement is the best way for them to meet the costs of their care.

9.74 The interest charged and added to the deferred amount will be compounded, and local authorities should ensure when making the agreement that individuals understand that interest will accrue on a compound basis.

9.75 Interest can accrue on the amount deferred even once someone has reached the 'equity limit' (see 'how much can be deferred' above). It can also accrue after someone has died up until the point at which the deferred amount is repaid to the local authority. If the local authority cannot recover the debt and seeks to pursue this through the County Court system (as discussed in Annex D on debt recovery), the local authority may charge the higher County Court rate of interest.

9.76 Local authorities must set their administration charge at a reasonable level, and this level must not be more than the actual costs incurred by the local authority in provision of the Universal Deferred Payment Scheme, as set out in regulations. Relevant costs may include (but are not limited to) the costs incurred by a local authority whilst:

9.77 Local authorities should maintain a publicly-available list of administration charges that a person may be liable to pay. It is good practice to separate charges into a fixed set-up fee for deferred payment agreements, reflective of the costs incurred by the local authority in setting up and securing a typical deferred payment agreement, and other reasonable one-time fees during the course of the agreement (reflecting actual charges incurred in the course of the agreement).

Making the agreement

9.78 Where someone chooses to enter into a deferred payment agreement, local authorities should aim to have the agreement finalised and in place by the end of the 12-week disregard period (where applicable) (see Annex B: Treatment of capital), or within 12 weeks of the person approaching the local authority regarding DPAs in other circumstances.

9.79 Decisions on a person's care and support package, the amount they intend to defer, the security they intend to use and the terms of the agreement should only be taken following discussion between the local authority and the individual. Once agreement in principle has been reached between the local authority and the person, it is the local authority's responsibility to transpose the details agreed into a deferred payment agreement, taking the legal form of a contract between the local authority and the person.

9.80 The local authority should provide a hard copy of the deferred payment agreement to the person, and they should be provided with reasonable time to read and consider the agreement, including time for the individual to query any clauses and discuss the agreement further with the local authority.

9.81 The agreement must clearly set out all terms, conditions and information necessary to enable the person to ascertain his or her rights and obligations under the agreement. These include:

1. a) terms to explain how the interest will be calculated and that it will be compounded if it is to be added to the deferred amount

2. b) information as to administrative costs the individual might be liable for

3. c) terms to explain how the adult may exercise his or her right to terminate the agreement, which should explain the process for and consequences of terminating the agreement and specify what notice should be given (see the section entitled 'terminating the agreement' below)

4. d) terms to explain the circumstances in which the local authority might refuse to defer or loan further fees (either when it is required to stop, for example if the person has already reached their 'equity limit', or when it has powers to stop, such as when a person qualifies for local authority support in paying for their care; as set out in the 'how much can be deferred' and 'permission to refuse' sections above)

5. e) that the local authority will secure their debt either by placing a legal (Land Registry) charge against the property, or by some other means specified

6. f) a term requiring the local authority to provide the person with a written statement every 6 months and within 28 days of request by the person, setting out how much the person owes to the authority and the cost to them of repaying the debt

7. g) a term which explains that the maximum amount which may be deferred is the equity limit and that this is likely to vary over time

8. h) a term which requires the local authority to give the adult 30 days written notice of the date on which they are likely to reach the equity limit

9. i) a term which requires the adult to obtain the consent of the local authority for any person to occupy the property

10. j) an explanation that the local authority will stop deferring its charges and making advances under a loan agreement if the person no longer receives care and support in a care home or supported living accommodation or if the local authority no longer considers that the adult's needs should be met in such accommodation

9.82 If the agreement is not for the deferral of charges due to the authority (that is, a loan-type agreement), the agreement must also contain:

1. a) a term to make clear that the authority will make advances of the loan to the adult in instalments

2. b) a term to make clear that the purpose of the loan is to pay for costs of care and support in a care home or supported living accommodation. This should explain:

1. (i) the consequences of any failure by the adult to pay those costs of care and support; and

2. (ii) that the adult must inform the local authority if he or she no longer receives or intends to receive care in such accommodation.

9.83 The agreement should also stipulate:

1. a) the value of any accrued or possible administrative charges, and where possible a breakdown of their calculation

2. b) the means of redress if either party feels the other has broken the terms of the agreement

3. c) the person's responsibilities regarding maintenance and insurance of their home

4. d) the person's responsibility to notify the local authority of any change to their income, home or care and support

5. e) the person's responsibility to notify the local authority if they intend to rent or sell their property and if someone has gained or may gain a beneficial interest in their property

6. f) the local authority's responsibility to give the person 30 days written notice if it intends to cease to defer charges (or make loan instalments) under the agreement

7. g) a clear explanation of the consequences of taking out a DPA for the person and their property, including anybody who may reside in the property

8. h) the equity limit of their security (as discussed above in the section entitled 'how much can be deferred') and the scope for this to change upon revaluation of the security used for the DPA

9. i) the process for varying any part of the agreement

10. j) the process by which the local authority can require a re-valuation of a person's chosen form of security

9.84 Local authorities should ensure at a minimum that people sign or clearly and verifiably affirm they have received adequate information on options for paying for their care, that they understand how the DPA works and understand the agreement they are entering into; and that they have had the opportunity to ask questions about the contract. A term reflecting this should be included in the agreement itself.

9.85 Local authorities will need to consider whether the deferred payment agreements they enter into are regulated credit agreements to which the Consumer Credit Act 1974 ( CCA) and Financial Services and Markets Act 2000 ( FSMA) apply.

9.86 The scope of 'regulated credit agreements' is set out in article 60B of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 ( RAO). A credit agreement is regulated unless exempt, and there are a number of exemptions in articles 60C to 60H of the RAO. It is likely that most DPAs will fall within such an exemption. If the agreement is regulated, it will need to comply with all applicable requirements of the CCA. In addition, the local authority will need a relevant permission from the Financial Conduct Authority ( FCA), and to comply with the FCA's rules and principles, unless the exclusion in article 72G of the RAO applies ( if the credit agreement is within the scope of the Consumer Credit Directive FCA authorisation is required).

9.87 All deferred payment agreements will be subject to the Unfair Terms in Consumer Contracts Regulations 1999, so the terms will have to be written in plain, intelligible English and will not be binding if they are unfair to the borrowers. Local authorities will also have to ensure that they do not contravene the Consumer Protection from Unfair Trading Regulations 2008.

The local authority's responsibilities whilst the agreement is in place

9.89 Local authorities must at a minimum provide people with 6-monthly written updates of the amount of fees deferred, of interest and administrative charges accrued to date, and of the total amount due and the equity remaining in the home (the 'equity limit' discussed in the section entitled at 'how much can be deferred' above). Local authorities should also provide the person with a statement on request within 28 days. Local authorities may provide updates on a more frequent basis at their discretion. The update should set out the amount deferred during the previous period, alongside the total amount deferred to date, and should also include a projection of how quickly someone would deplete all equity remaining in their chosen form of security up to their equity limit.

9.90 Local authorities should reassess the value of the chosen form of security once the amount deferred exceeds 50% of the security (and periodically thereafter), and adjust the equity limit and review the amount deferred if the value has changed.

9.91 Local authorities may offer people a way to check their statement at any point in the year via an online facility.

9.92 Local authorities may choose to develop advice and guidance around maintaining a home, renting, and income. Local authorities may also offer services/ products to help the person meet the requirements for maintenance and insurance, but cannot compel a person to take on their product. Local authorities must accept reasonable alternative maintenance and insurance services.

Case study 6:

For illustrative purposes, we have used an interest rate of 3.5%. After 6 months, Lucille receives her first statement. It confirms she has deferred a total of £13,900, including £110 in interest and £100 in administration fees.

At this point, the local authority revalues her property and finds its value has increased to £170,000. Based on the amount deferred and her care costs, her equity would afford her just over 4 and a half more years' care at this price.

Contractual responsibilities on the individual whilst the agreement is in place

9.93 The deferred payment agreement sets out various contractual requirements on the individual as well as on the local authority. These are set out briefly in sections above, but the person's consequent responsibilities are recapped in more detail in the paragraphs below.

9.94 If the local authority is exercising its right to require the adult to make a contribution from income, it should include in the legal agreement provisions requiring the person to notify the local authority of any changes in their income.

9.95 The agreement should also contain provisions requiring the adult to notify the authority of changes in their need for care and support, if those changes are ones which will mean that the authority must or is entitled to stop making further instalments under the agreement or to alter the amount of the instalments.

9.96 Similarly if the agreement has been entered into on the basis that the adult's property has not been disregarded for the purposes of the financial assessment in section 17 and it is a term of the agreement that the local authority will cease making or reduce the amount of instalments it makes, the agreement should require the person to inform the authority of changes which mean that the property may be disregarded.

9.97 The local authority should include in a contract provisions requiring someone to ensure that appropriate arrangements are in place to maintain their home whilst they are in care. In particular, the contract should require that their home is maintained adequately, and require someone to have in place an arrangement for regular maintenance to take place. Local authorities should also require the person to have adequate insurance for their property. If their home is to be left empty for an extended period of time, the person will need to ensure their insurance covers this adequately and that any terms required by the insurer are met.

9.98 The local authority must include in a contract provisions which require the person to obtain the authority's consent before allowing someone to move into the property after the agreement has been made. In these circumstances, the local authority may (if it is reasonable to do so) require written consent from the person which places the debt owed to the local authority above any beneficial interest they may accrue in the property.

Termination of agreement

9.99 A deferred payment agreement can be terminated in 3 ways:

1. a) at any time by the individual, or someone acting on their behalf, by repaying the full amount due (this can happen during a person's lifetime or when the agreement is terminated through the deferred payment agreement holder's death)

2. b) when the property (or form of security) is sold and the authority is repaid [see note 6]

3. c) when the person dies and the amount is repaid to the local authority from their estate

Note 6

In the case that a deferred payment agreement is agreed on the basis of a form of security other than property, local authorities will need to make provision in the agreement for conclusion of the deferred payment agreement in the event that the given security is disposed of/comes to fruition.

9.100 All 3 scenarios for the termination of the agreement are discussed below, alongside the various options for repayment. On termination, the full amount due (including care costs, any interest accrued and any administrative or legal fees charged) must be paid to the local authority.

9.101 If a person decides to sell their home, they should notify the local authority during the sale process. They will be required to pay the amount due to the local authority from the proceeds of the sale, and the local authority will be required to relinquish the charge on their property.

9.102 A person may decide to repay the amount due to the local authority from another source, or a third party may elect to repay the amount due on behalf of the individual. In either case, the local authority should be notified of the person's/the third party's intention in writing, and the local authority must relinquish the charge on the property on receipt of the full amount due.

9.103 If the deferred payment is terminated due to the person's death, the amount due to the local authority must be either paid out of the estate or paid by a third party. A person's family or a third party may wish to settle the debt to the local authority by other means of repayment (as may be the case if the family wanted to avoid having to sell the property or means of security), and the local authority must accept an alternative means of payment in this case, provided this payment covers the full amount due to the local authority.

9.104 The executor of the will or administrator of the estate can decide how the amount due is to be paid; either from the person's estate (usually via the sale of the house or potentially via a life assurance policy) or from a third party source.

9.105 A local authority should wait at least 2 weeks following the person's death before approaching the executor with a full breakdown of the total amount deferred (but a family member or the executor can approach the local authority to resolve the outstanding amount due prior to this point).

9.106 Responsibility for arranging for repayment of the amount due (in the case of payment from the estate) falls to the executor of the will.

9.107 Interest will continue to accrue on the amount owed to the local authority after the individual's death and until the amount due to the local authority is repaid in full.

9.108 If terminated through a person's death, the amount owed to a local authority under a deferred payment agreement falls due 90 days after the person has died. After this 90-day period, if a local authority concludes active steps to repay the debt are not being taken, for example if the sale is not progressing and a local authority has actively sought to resolve the situation (or the local authority concludes the executor is wilfully obstructing sale of the property), the local authority may enter into legal proceedings to reclaim the amount due to it. Further information on debt recovery is included at Annex D of this guidance.

9.109 In whichever circumstance an agreement is terminated, the full amount due to the local authority must be repaid to cover all costs accrued under the agreement, and the person (and/or the third party where appropriate) must be provided with a full breakdown of how the amount due has been calculated. Once the amount has been paid, the local authority should provide the individual with confirmation that the agreement has been concluded, and confirm (where appropriate) that the charge against the property has been removed.

Person-centred care and support planning

This section includes chapters 10 to 13 and has information on:

10. Care and support planning

This chapter provides guidance on sections 24 and 25 of the Care Act 2014, and includes:

when to undertake care and support planning

what it means to 'meet needs', and considerations in deciding how to meet needs

how to undertake care and support planning, and support planning

production of the plan

Involving the person

authorising others (including the person) to prepare the plan

care planning for people who lack capacity

minimising and authorising a deprivation of liberty (DOL) for people who lack capacity

combining plans

sign-off and assurance

protecting property of adults being cared for away from home

10.1 Care and support should put people in control of their care, with the support that they need to enhance their wellbeing and improve their connections to family, friends and community. A vital part of this process for people with ongoing needs which the local authority is going to meet is the care and support plan or support plan in the case of carers (henceforth referred to as 'the plan').

10.2 The person must be genuinely involved and influential throughout the planning process, and should be given every opportunity to take joint ownership of the development of the plan with the local authority if they wish, and the local authority agrees. There should be a default assumption that the person, with support if necessary, will play a strong pro-active role in planning if they choose to. Indeed, it should be made clear that the plan 'belongs' to the person it is intended for, with the local authority role being to ensure the production and sign-off of the plan to ensure that it is appropriate to meet the identified needs.

10.3 The personal budget in the plan will give everyone clear information regarding the costs of their care and support and the amount that the local authority will make available, in order to help people to make better informed decisions as to how needs will be met. The ability to meet needs by taking a direct payment must be clearly explained to the person in a way that works best for them, so that they can make an informed decision about the level of choice and control they wish to take over their care and support. This should mean offering the choice more than once in the process and enabling that choice by providing examples of how others have used direct payments, including via direct peer support, for example from user-led organisations.

10.4 Some people will need assistance to make plans and decisions, and to be involved in the planning process. The modern care and support system should routinely enable supported decision making, where options and choices are presented simply and clearly. Independent advocates (if used) must be instructed early in the assessment and planning process for those who have substantial difficulty in engaging with the care system, and have no other means of accessing appropriate support through friends or relatives to facilitate their involvement. If the person's substantial difficulty only becomes apparent during the assessment, an advocate must be instructed as soon as this becomes known (see chapter 7).

10.5 Ultimately, the guiding principle in the development of the plan is that this process should be person-centred and person-led, in order to meet the needs and achieve the outcomes of the person in ways that work best for them as an individual or as part of a family. Both the process and the outcomes should be built holistically around people's wishes and feelings, their needs, values and aspirations, irrespective of the extent to which they choose or are able to actively direct the process.

Definitions

10.6 This chapter applies to people in need of care and support and carers equally, unless specifically stated. It should be read in conjunction with the other chapters in this section (personal budgets, direct payments and review of care plans).

10.7 Unless otherwise stated, this chapter (and subsequent chapters in the section of 'Person Centred Care and Support Planning') applies to everyone whose needs are being met by the local authority, regardless of the setting in which the needs are met. For example, people in care homes must also receive a care and support plan and personal budget.

10.8 For the purposes of this chapter 'the plan' means either the care and support plan (in the case of adults with care and support needs) or the support plan (in the case of carers). When to undertake care and support planning, and support planning

10.9 Following the needs and carer's assessment and determination of eligibility (see chapter 6), a plan must be provided where a local authority is required to meet needs under section 18 or 20(1) of the Care Act, or decides to meet needs under section 19(1) or (2) and 20(6) of the Act. Where a local authority is required to meet needs under section 117 of the Mental Health Act 1983 this chapter should be read in conjunction with chapter 34 of the Mental Health Act 1983 Code of Practice (on the Care Programme Approach) and Refocusing the Care Programme Approach.

What does it mean to 'meet needs'?

10.10 'Meeting needs' is an important concept under the Act and moves away from the previous terminology of 'providing services'. This enables a greater variety of approaches in how needs can be met, developed through care and support planning as described in this chapter. The concept of 'meeting needs' is intended to be broader than a duty to provide or arrange a particular service. Because a person's needs are specific to them, there are many ways in which their needs can be met. The intention behind the legislation is to encourage this diversity, rather than point to a service or solution that may be neither what is best nor what the person wants. The purpose of the care and support planning process is to agree how a person's needs should be met, and therefore how the local authority will discharge its duty, or its power, to do so.

10.11 There are a number of broad options for how needs could be met, and the use of one or more of these will depend on the circumstances. Section 8(2) of the Act gives some examples of ways of meeting needs, and would cover:

10.12 Where the local authority provides or arranges for care and support, the type of support may itself take many forms. These may include more traditional 'service' options, such as care homes or homecare, but may also include other types of support such as assistive technology in the home or equipment/adaptations, and approaches to meeting needs should be inclusive of less intensive or service-focused options.

10.13 Needs may be met through types of care and support which are available universally, including those which are not directly provided by the local authority. For example, in some cases needs could be met by a service which is also made available as part of a local authority's plans for preventing or reducing needs for care and support (under Section 2 of the Act). Needs could also be met, for example, by putting a person in contact with a local community group or voluntary sector organisation.

10.14 The examples of how needs can be met listed in the Act are not exhaustive, but cover the most common means of meeting needs. In addition, there are other methods which may be suitable for meeting a person's needs, for example by arranging an individual service fund (see chapter 11 on personal budgets which also includes detail on individual service funds). This is a budget held by a provider, rather than by the local authority or the individual. The local authority makes a payment to the provider, which then holds a budget over which the individual has control.

10.15 The local authority may also consider whether it can effectively meet a person's needs by 'brokering' a service on behalf of an individual in certain cases. 'Brokering' services are commonly offered by organisations which are independent of the local authority, and may be accessed by any person wishing to find care. However, the local authority may also provide such support where it meets a person's needs. 'Brokering' would involve the local authority supporting an individual to make a choice about the provider of their care, and to enter into a contract with that provider. The local authority would not need to hold the contract with the provider, but would be required to assure itself that the chosen provider and terms of the contract were appropriate to meet the person's needs.

10.16 The local authority would remain under the duty to meet a person's eligible needs, and so would need to be satisfied both that this was an effective way of meeting those needs, and that the person was in agreement to this approach being used. It is likely that 'brokering' would only be an effective way of meeting a person's needs in exceptional circumstances, for example where a person is fully funding their own care and wishes to retain control of the contract with their provider, but wants the local authority to meet their needs and the local authority has agreed to do so. If there is a risk that a person's needs would not be met effectively by means of 'brokering', the local authority should discount it as an option and proceed with other ways of meeting that person's needs, such as direct commissioning of services from a provider. In considering such an option, the local authority should also have regard to the likelihood of the person continuing to be willing and able to manage such arrangements in the future, including their ability to pay the charges due (for example, to mitigate against a future loss of capacity or disposal of their assets, such that the local authority may be required to take over the contract with the provider). The local authority would continue to support the person in meeting any other needs, offering ongoing support and keeping the arrangements under review to ensure that the needs were met. The person would have a care and support plan as usual.

10.17 The individual's position in this approach would in some respects be akin to a person who had taken a direct payment to commission their own services, in that they would hold their own contract with a provider whilst the local authority is under a duty to meet their needs.

10.18 The difference would be that in the case of a direct payment, the money for commissioning the service comes from the local authority, whereas in the case of 'brokering' it comes from the individual directly. This option, therefore, would only likely be of use for meeting the needs of people who are fully funding their own care but ask the local authority to meet their eligible needs, and who are not using alternative arrangements such as an individual service fund.

Case study: Using discretionary powers to meet needs

Mrs Pascal, who is frail and elderly, was admitted to hospital after a fall. The hospital has established that Mrs Pascal currently has no care and support plan in place and made contact with the local authority to arrange a needs assessment. The local authority assesses that she has eligible needs which will be best met in a care home setting.

The local authority undertakes a financial assessment which finds that Mrs Pascal's finances are above the limit for financial support from the local authority. The authority provides her with information and advice about her options. Mrs Pascal expresses extreme nervousness about seeking a placement on her own as she has struggled with managing her personal finances in recent times and does not have any family who are able to support her.

After a consultation, both Mrs Pascal and her local authority agree that support with arranging and managing a care placement would be beneficial for her wellbeing and would adequately meet her eligible needs. The authority arranges for Mrs Pascal to meet a trusted brokerage organisation which discusses her needs and arranges a contract with a care home on behalf of Mrs Pascal that she is very happy with.

Considerations in meeting needs

10.19 However the local authority is meeting needs, the principles in this chapter should be followed, such as ensuring the process is person-centred, and involving and taking all reasonable steps to agree the plan with the person.

10.20 The local authority must take into consideration the individual's preferences. The authority should consider the person's goals in approaching the authority for support, and the level or nature of support desired. Where the person wishes to take more control over their own care and support, this should be reflected in the route taken. Similarly, where the person asks for more local authority support (for example, because they lack the skills or confidence to engage with the provider market and do not have family or friends who are willing and/or able to support them with this), the authority should respond accordingly in the decision taken about how needs will be met.

Relationship with other services

10.21 Local authorities should also have regard to how needs may be met beyond the provision, or arrangement, of services by the authority. A person may already be in receipt of care and support which meets their needs (whether self-funded and arranged or not). 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. If however, the alternative means of meeting the needs is in place and the authority is satisfied that this alternative means is, in fact, meeting the person's eligible needs, then the authority may not actually have to arrange or provide any services to comply with that duty.

10.22 However, the local authority should nonetheless record those needs through the assessment process, determine whether the needs meet the eligibility criteria and keep under review whether the authority needs to do anything in order to comply with its duty to meet the person's eligible needs (for example, if the alternative services being provided to meet the needs cease or the authority is no longer satisfied that the alternative services adequately meet the person's needs).

10.23 Sections 21 to 23 of the Act set out the limitations on the circumstances in which local authorities may meet care and support needs. In particular, they make clear that local authorities must not meet needs by providing or arranging any health service or facility which is required to be provided by the NHS, or doing anything under the Housing Act 1996. The aim of these provisions is to avoid duplication in the provision of services and facilities, and provide clarity about the limits of care and support, and the circumstances in which care and support should be provided as opposed to health services or housing services (or vice versa).

10.24 There may be other services to which a person is entitled under other legislation (but which could also be provided as part of the provision of care and support), which a local authority is not specifically prohibited from providing under the Act. Where there is a risk of overlapping entitlements (for example, where 2 different organisations may be under a duty to provide a service in relation to the same needs), local authorities should take steps to support the individual to access the support to which they are entitled under other legislation. This may include, for example, helping the person to access some disability-related benefits and allowances. It may also include working with the housing authority to ensure that there is a clear process in place for access to disabled facilities grants to avoid the risk of duplication of work in meeting the same needs.

10.25 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 bring provided or arranged. Local authorities should therefore consider how to inform and advise people on accessing any such entitlements at the earliest stage possible, as well as working collaboratively with other local services to share information.

Needs met by a carer

10.26 Local authorities are not under a duty to meet any needs that are being met by a carer. The local authority must identify, during the assessment process, those needs which are being met by a carer at that time, and determine whether those needs would be eligible. But any eligible needs met by a carer are not required to be met by the local authority, for so long as the carer continues to do so. The local authority should record in the care and support plan which needs are being met by a carer, and should consider putting in place plans to respond to any breakdown in the caring relationship.

Other considerations

10.27 In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties. This includes the importance of ensuring that the funding available to the local authority is sufficient to meet the needs of the entire local population. The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual's needs should be met (but not whether those needs are met). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes - doing so would not deliver an approach that is person-centred or compatible with public law principles. The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs, and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value.

Non-eligible needs

10.28 Where the local authority is not required to meet needs, it nonetheless may use its powers to meet any other needs. This may include, for example, meeting needs which are not 'eligible' (for example, those which do not meet the eligibility criteria), or meeting eligible needs in circumstances where the duty does not apply (for example, where the person is ordinarily resident in another area). Where the local authority exercises such a power to meet other needs, the same duties would apply regarding the next steps, and therefore a plan must be provided.

10.29 If the local authority decides not to use its powers to meet other needs, it must give the person written explanation for taking this decision, and should give a copy to their advocate if the person requests. If the person cannot request this, then a copy should be given to the person's advocate or appropriate individual if this in the best interests of the person. This explanation must also 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. Authorities may choose to provide this information after the eligibility determination, in which case this need not be repeated again. At whatever stage this is done, in all cases the person must be given a written explanation of why their needs are not being met. The explanation provided to the person must be personal to and should be accessible for the person.

10.30 Where a local authority is meeting some needs, but not others, a combination of the 2 approaches above must be followed. The person must receive a care and support plan for the needs the local authority is required, or decides to meet that accords to the Act and this guidance, and which also includes a tailored package of information and advice on how to delay and/or prevent the needs the local authority is not meeting. This information should be given to the person in a format accessible to them so they are clear what needs are being met by the local authority.

How to undertake care and support planning, and support planning

10.31 The plan must detail the needs to be met and how the needs will be met, and will link back to the outcomes that the adult wishes to achieve in day-to-day life as identified in the assessment process and to the wellbeing principle in the Act. This should reflect the individual's wishes, their needs and aspirations, and what is important to and for them, where this is reasonable. [footnote 37] This process is central to the provision of person-centred care and support that provides people with choice and control over how to meet their needs. The local authority should encourage creativity in planning how to meet needs, and refrain from judging unusual decisions as long as these are determined to meet needs in a reasonable way.

10.32 The guiding principle therefore is that the person be actively involved and is given every opportunity to influence the planning and subsequent content of the plan in conjunction with the local authority, with support if needed. Joint planning does not mean a 50:50 split; the person can take a bigger share of the planning where this is appropriate and the person wishes to do so. A further principle is that planning should be proportionate. The person should not be required to go through lengthy processes which limit their ability to be actively involved, unless there are very strong reasons to add in elements of process and decision-making. Wherever possible the person should be able to be fully involved in the development of their plan, and any revision if circumstances change, with minimum process.

Production of the plan

10.33 The plan should be person-centred, with an emphasis on the individual having every reasonable opportunity to be involved in the planning to the extent that they choose and are able. This requires the local authority to ensure that information is available in a way that is meaningful to the person, and that they have support and time to consider their options. A named contact or lead professional should be considered both as part of care planning, and in the final plan, so that the person knows how to contact the local authority. The planning choices offered should range from support for the person, to jointly develop their plan with the local authority alone or with their family, friends or whoever they may wish to involve (this might include web-based resources, written information and peer support), through to one-to-one support from a paid professional, such as a social worker which may be the same person who undertook the assessment.

10.34 Where the person has substantial difficulty in being actively involved with the planning process, and they have no family and friends who are able to facilitate the person's involvement in the plan, the local authority must provide an independent advocate to represent and support the person to facilitate their involvement (see chapter 7). Likewise, where a person with specific expertise or training in a particular condition (for example, deafblindness) has carried out the assessment, someone with similar knowledge (and preferably the same person to ensure continuity) should also be involved in production of the plan.

10.35 In ensuring that the process is person-centred, the local authority should ensure that any staff responsible for developing the plan with the person are trained in the Mental Capacity Act if appropriate, familiar with best practice, and that there is sufficient local availability of independent advocacy and peer support, including access to social work advice.

10.36 When developing the plan, there are certain elements that must always be incorporated in the final plan, [unless excluded by the Care and Support (Personal Budget Exclusion of Costs) Regulations 2014]. These are:

10.37 These requirements should not encourage lengthy process where this is not necessary, or fixed decisions that cannot be changed easily. The maximum flexibility should be incorporated to allow adjustment and creativity, for example by allowing people to include personal elements into their plan which are important to them (but which the local authority is not under a duty to meet), or by developing the plan in a format that works for the person rather than a standard template.

10.38 Consideration of the needs to be met should take a holistic approach that covers aspects such as the person's wishes and aspirations in their daily and community life, rather than a narrow view purely designed to meet personal care needs.

10.39 Consideration of needs should also include the extent to which the needs or a person's other circumstances may mean that they are at risk of abuse or neglect. The planning process may bring to light new information that suggests a safeguarding issue, and therefore lead to a requirement to carry out a safeguarding enquiry (see chapter 14). Where such an enquiry leads to further specific interventions being put in place to address a safeguarding issue, this may be included in the care and support plan.

10.40 In considering the person's needs and how they may be met, the local authority must take into consideration any needs that are being met by a carer. The person may have assessed eligible needs which are being met by a carer at the time of the plan - in these cases the carer must be involved in the planning process. Provided the carer remains willing and able to continue caring, the local authority is not required to meet those needs. However, the local authority should record the carer's willingness to provide care and the extent of this in the plan of the person and also the carer, so that the authority is able to respond to any changes in circumstances (for instance, a breakdown in the caring relationship) more effectively. Where the carer also has eligible needs, the local authority should consider combining the plans of the adult requiring care and the carer, if all parties agree, and establish if the carer requires an independent advocate.

10.41 Local authorities should have regard to how universal services and community-based and/or unpaid support could contribute to the factors in the plan, including support that promotes mental and emotional wellbeing and builds social connections and capital. This may require additional learning and development skills and competencies for social workers and care workers which local authorities should provide.

10.42 Authorities are free, and are indeed encouraged, to include additional elements in the plan where this is proportionate to the needs to be met and agreed with the person the plan is intended for. For example, some people may value having an anticipated review date built into their plan in order for them to be aware of when the review will take place. As detailed in the review chapter, it is the expectation that the plan is reviewed no later than every 12 months, although a light-touch review should be considered 6-8 weeks after the plan and personal budget have been signed off.

10.43 The plan should be proportionate to the needs to be met, and should reflect the person's wishes, preferences and aspirations. However, local authorities should be aware that a 'proportionate' plan does not equate to a light-touch approach, as in many cases a proportionate plan will require a more detailed and thorough examination of needs, how these will be met and how this connects with the outcomes that the adult wishes to achieve in day-to-day life.

10.44 For example, the person may have fluctuating needs, in which case the plan should make comprehensive provisions to accommodate for this, as well as indicate what contingencies are in place in the event of a sudden change or emergency. This should be an integral part of the care and support planning process, and not something decided when someone reaches a crisis point. Furthermore, specific consideration should be given to how planning is conducted in end of life care.

10.45 In all cases, additional content to the plan must be agreed with the adult and any other person that the adult requests, and should be guided by the person the plan is intended for. There should also be no restriction or limit on the type of information that the plan contains, as long as this is relevant to the person's needs and/or outcomes. It should also be possible for the person to develop their plan in a format that makes sense to them, rather than this being dictated by the recording requirements of the local authority.

Case study: Fluctuating needs

Miss S has Multiple Sclerosis and requires a frame or wheelchair for mobility. Miss S suffers badly with fatigue, but for the majority of the time she feels able to cope with daily life with a small amount of care and support. However, during relapses she has been unable to sit up, walk or transfer, has lost the use of an arm or lost hervision completely. This can last for a few weeks, and happens 2 or 3 times a year; requiring 24 hour support for all daily activities.

In the past, Miss S was hospitalised during relapses as she was unable to cope at home. However, for the past 3 years, she has received a care and support package that include direct payments which allows her to save up one month's worth of 24 hour care for when she needs it, and this is detailed in the care and support plan.

Miss S can now instantly access the extra support she needs without reassessment and has reassurance that she will be able to put plans in place to cope with any fluctuating needs. She has not been hospitalised since.

10.46 In developing the plan, the local authority must inform the person which, if any, of their needs may be met by a direct payment (see chapter 12). In addition to this, the local authority should provide the person (and/or their independent advocate or any other individual supporting the person, if relevant and if the person wishes this) with appropriate information and advice concerning the usage of direct payments, how they differ from traditional services, and how the local authority will administer the payment (for example an explanation of the direct payment agreement or contract, and how it will be monitored). This advice should also include detail such as:

10.47 This information provided upfront should assist the person to decide whether they wish to request a direct payment to meet some or all of their needs and should also be available at various points in the process to ensure people have the best opportunities possible to consider how direct payments may be of benefit to them. However the person chooses to have their needs met, whether by direct payment, by the provision of local authority-arranged or directly provided care and support, or third-party provision, or a mix of these, there should be no constraint on how the needs are met as long as this is reasonable. The local authority has to satisfy itself that the decision is an appropriate and legal way to meet needs, and should take steps to avoid the decision being made on the assumption that the views of the professional are more valid than those of the person. Above all, the local authority should refrain from any action that could be seen to restrict choice and impede flexibility.

10.48 It is important that people are allowed to be very flexible to choose innovative forms of care and support, from a diverse range of sources, including quality providers but also 'non-service' options such as Information and Communication Technologies ( ICT) equipment, club membership, and massage. Lists of allowable purchases should be avoided as the range of possibilities should be very wide and will be beyond what the local authority is able to list at any point in time. While many authorities may choose to operate lists of quality accredited providers to help people choose (for example some authorities include trading standards-style 'buy with confidence' approaches) the use of such lists should not be mandated as the only choice offer to people. Limited lists of 'prescribed providers' that are only offered to the person on a 'take it or leave it' basis do not fit with the government's vision of personalised care and should be avoided.

Involving the person

10.49 In addition to taking all reasonable steps to agree how needs are to be met, the local authority must also involve the person the plan is intended for, the carer (if there is one), and/or any other person the adult requests to be involved. Where the person lacks capacity to ask the authority to do that, the local authority must involve any person who appears to the authority to be interested in the welfare of the person and should involve any person who would be able to contribute useful information. An independent advocate must be provided if section 67 of the Act applies (see chapter 7). The person, and their carers, will have the best understanding of how the needs identified fit into the person's life as a whole and connect to their overall wellbeing (see chapter 1). They are well placed to consider and identify which care and support options would best fit into their lifestyle and help them to achieve the day to day outcomes they identified during the assessment process. In practice, local authorities should give consideration to include a prompt to the person during the initial stages of the planning process to ask whether there is anyone else that the person wishes to be involved. Where the person lacks capacity, the local authority should make a best interests decision about who else should be involved.

10.50 The level of involvement should be agreed with the individual and any other party they wish to involve and should reflect their needs and preferences. This may entail local authorities involving the person through regular planning meetings, or there may be instances where remote involvement is just as effective, such as over the telephone, through video conferencing, or other means. In other circumstances, local authorities will need to seek the support of speech and language therapists or other specialists such as interpreters. Some people will need little help to be involved, others will need much more. Social workers or other relevant professionals should have a discussion with the person to get a sense of their confidence to take a lead in the process and what support they feel they need to be meaningfully involved.

10.51 The person should be supported to understand what is being discussed and what options are available for them. The local authority should make sure that a person's lack of confidence to take a lead in the process should not limit the extent to which they can play an active role, if they wish to do so. In all cases, people should be allowed to gain support from individuals who they choose to assist their involvement in the planning process. Where they have substantial difficulty in being actively involved in the process, then they should be assisted by a family member or friend. If the person already has an advocate, whose role has been to support the person on matters not under the Care Act, then it may be appropriate for them to support the individual's involvement and represent them. However, if an advocate is required under the Mental Capacity Act 2005 ( MCA) as well as the Care Act, then the instruction, appointment and qualification of the advocate must meet the requirements of the MCA.

10.52 The local authority must instruct an independent advocate if there is no one to represent and support the person's involvement (see chapter 7). This duty arises if the person would, without the representation and support of an independent advocate, experience substantial difficulty in any of the following:

10.53 For example, there may be cases where a person who has substantial difficulty in the above, has no family or friend who can help, and therefore requires an independent advocate to understand the relevant information provided by the local authority, and to be able to use it to effectively plan for their care and support.

10.54 Genuine involvement will aid the development of the plan, increase the likelihood that the options selected will effectively support the adult in achieving the outcomes that matter to them, and may limit disputes as people involved will be fully aware and have agreed to decisions made. Local authorities should ensure that staff have appropriate learning and development opportunities in order to be able to facilitate involvement in the development of the plan.

Authorising others (including the person) to prepare the plan jointly with the local authority

10.55 As stated earlier in this guidance, it is important that local authorities give people every opportunity to prepare their own plan in conjunction with the local authority if they wish.

10.56 Where a plan is being jointly prepared by the local authority and the person whose plan it is, or the local authority and a third party, the local authority should ensure that relevant information is shared securely, promptly and in accordance to the Data Protection Act to allow the plan to be prepared in a timely fashion.

10.57 A partnership approach should be taken, where each partner knows their role and the parties supported to identify options and choose between them. For example, the person may need help to weigh up different service options to understand what each involves and to be able to choose the most appropriate and least restrictive option possible.

10.58 The local authority should also consider cases or circumstances where it may not be appropriate to jointly prepare the plan. For example, a person may not wish their family to be involved, or the authority may be aware that family members may have conflicting interests, or the person may have asked the local authority to prepare the plan with someone who lives far away from the person and even with the assistance of email, phone and other methods of communication is unable to prepare the plan in a timely fashion. The test for allowing the person and others to prepare the plan jointly with the local authority should start with the presumption that the person at the heart of the care plan should give consent for others to do so; and should also have safeguarding principles embedded to ensure that there is no conflict of interest between the person and the third party they wish to involve to prepare the plan jointly with. Where a person lacks capacity and cannot consent to third parties jointly preparing the plan, the local authority must always act in the best interests of the person requiring care and support.

Planning for people who lack capacity

10.59 Good, person-centred care planning is particularly important for people with the most complex needs. Many people receiving care and support have mental impairments, such as dementia or learning disabilities, mental health needs or brain injuries. The principles of the Care Act apply equally to them, in addition to the principles and requirements of the Mental Capacity Act 2005 ( MCA) if the person lacks capacity (see also chapter 7 on independent advocacy).

10.60 The MCA requires local authorities to assume that people have capacity and can make decisions for themselves, unless otherwise established. Every adult has the right to make his or her own decisions in respect of his or her care plan, and must be assumed to have capacity to do so unless it is proved otherwise. This means that local authorities cannot assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability.

10.61 The local authority must support the person to understand and weigh up information, to offer choices and help people to exercise informed choice. A person must be given all practicable help to make the specific decision before being assessed as lacking capacity to make their own decisions.

10.62 Local authorities must understand that people have the right to make what others might regard as an unwise or unusual decision. Everyone has their own values, beliefs and preferences which may not be the same as those of other people. People cannot be treated as lacking capacity for that reason. Sometimes the care and support plan may have unusual aspects; the question to explore is whether it will meet the assessed needs and lead to the desired outcomes.

10.63 If a local authority thinks a person may lack capacity to make a decision or a plan, even after they have offered them all practicable support, a social worker or other suitably qualified professional should carry out a capacity assessment in relation to the specific decision to be made. For example, the local authority may assess whether the person has the capacity to decide whether family members should be involved in their care planning or whether the person has the capacity to decide on whether a particular support option will meet their needs.

10.64 Where an individual has been assessed as lacking capacity to make a particular decision, then the local authority must commence care planning in the person's best interests under the meaning of the MCA. Furthermore a person making a decision concerning a plan on behalf of a person who lacks capacity must consider whether it is possible to make a decision or a plan in a way that would be less restrictive of the person's rights and freedoms of action. Any restriction must be in the person's best interests and necessary to prevent harm to the person, and a proportionate response to the likelihood of the person suffering harm and the seriousness of that harm.

10.65 The duty to involve the person remains throughout the process. If lack of capacity is established, it is still important that the person is involved as far as possible in making decisions. Planning should always be done with the person and not for them; should always start by the identification of their wishes, feelings, values and aspirations, not just their needs, and should always consider their wellbeing in the wider context of their rights to security, to liberty, and to family life.

10.66 Where a person has substantial difficulty in being fully involved in their care planning or lacks capacity to agree and consent to the care plan, they may be supported by family members or friends. If a person has no family or friend who is able to facilitate the person's involvement available and willing to do so, then an independent advocate must be appointed. A friend or family member is not appropriate to facilitate the person's involvement if the person has capacity to decide who they wish to support them and chooses not to be supported by that individual. If the person lacks such capacity, then the local authority must decide on the suitability of the friend or family member to act in the person's best interests. The role of the independent advocate is to:

Minimising and authorising deprivation of liberty (DOL) for people who lack capacity

10.67 In line with the least restrictive principle in the MCA, local authorities and others drawing up plans must minimise planned restrictions and restraints on the person as much as possible. Sections 5 and 6 of the MCA provides legal protection for acts of restraint only if the act is necessary to prevent harm to the person, a proportionate response to the likelihood of the person suffering harm and the seriousness of that harm, and in the person's best interests. Planned restrictions and restraints must be documented and reported to a social worker to agree. Disagreements should be resolved through formal Best Interests meetings, involving a wide range of people, including family members and/or an advocate to support and represent the person.

10.68 However, if the degree and intensity of restrictions and restraints are so significant that they amount to a deprivation of liberty, this must be authorised under the Deprivation of Liberty Safeguards ( DOLS) under the MCA.

10.69 Developing effective person-centred processes for planning in line with the guidance and the Act in general may in most cases avoid circumstances where a deprivation of liberty will arise.

10.70 The difference between a deprivation of liberty and restraint is one of degree, intensity and duration, not necessarily nature or substance. The Supreme Court has clarified that there is a deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights in the following circumstances: the person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to those arrangements. [footnote 38] The precise scope of the term 'deprivation of liberty' is not fixed. It develops over time in accordance with case law.

familiarise themselves with the provisions of the MCA, particularly the 5 principles and specifically the 'least restrictive' principle

when designing and implementing new care and support plans for people lacking capacity, be alert to any restrictions and restraint which may be a degree or intensity that means a person is being, or is likely to be, deprived of their liberty (following the revised test supplied by the Supreme Court)

where a potential deprivation of liberty is identified at the planning or commissioning care stage, a full exploration of the alternative ways of providing the care and/or treatment should be undertaken, in order to identify any less restrictive ways of providing that care which will avoid a deprivation of liberty

where the plan for an individual lacking capacity will unavoidably result in a deprivation of liberty judged to be in the person's best interests, this must be authorised before being implemented

Combining plans

10.73 Local authorities should not develop plans in isolation from other plans (such as plans of carers or family members, or Education, Health and Care plans) and should have regard to all of the person's needs and outcomes when developing a plan, rather than just their care and support needs. [footnote 39]

10.74 The local authority should attempt to establish where other plans are present, or are being conducted and seek to combine plans, if appropriate. This should be considered early on in the planning process (at the same time as considering the person's needs and how they can be met in a holistic way) to ensure that the package of care and support is developed in a way that fits with what support is already being received or developed. For example, this may be where the plan can be combined with a plan being developed to meet other needs, or where a plan might usefully be combined with that of a carer, or family member. In all circumstances, the plan should only be combined if all parties to whom it is relevant agree and understand the implications of sharing data and information. It is the responsibility of the local authority to obtain consent from all parties involved, and the combination of plans should aim to maximize outcomes for all involved.

10.75 Where one of the plans to be combined is for a child (below 18 years old), the child must have capacity to agree to the combination, or if lacking capacity, the local authority must be satisfied that the combination of plans would be in the child's best interests. Often it will be; but where there is a conflict of interest (for example a parent does not wish to support their 17 year old daughter's wish for greater independence) it may not be (see chapter 16 on transition to adult care and support).

10.76 The local authority may be undertaking care and or support planning for 2 people in the same household who require independent advocacy to facilitate their involvement. If both people have the capacity to consent to having the same advocate, and the advocate and the local authority both consider there is no conflict of interest, then the same advocate may support and represent the 2 people. If either person lacks the capacity to consent to having the same advocate, the advocate and local authority must both consider that using the same advocate would not raise a conflict of interest and would be in the best interests of both persons (see chapter 7).

10.77 Consideration should also be given to how plans could be combined where budgets are pooled, either with people in the same household, or between members of a community with similar care needs where this is appropriate and all parties agree (see chapter 11 on personal budgets). Pooling arrangements should not be restricted to individuals using the same provider. Networks of pooling arrangements should be encouraged to bring groups of people together in a more effective manner.

10.78 Where it has been agreed to combine the plan with plans relating to other people, it is important that the individual aspects of each person's plan are not lost in the process of combining plans. The combined plan should reflect the individual needs and circumstance for each person involved, as well as any areas where a joint approach has been agreed to meet needs in a more effective way.

10.79 One key area where plans can be combined cases where the person is receiving both local authority care and support and NHS health care is an example would be a person with mental disorder who meets the criteria for care and support under the multi-agency Care Programme Approach. The introduction of personal health budgets in health, similar to personal budgets in social care, provides a powerful tool to enable integrated health and care provision which focuses on what matters most to the person. Local authorities should provide information to the person of the benefits of combining health and social care support, and seek to work with health colleagues to combine health and care plans wherever possible.

10.80 In combining plans, whether among people or organisations (such as health, education or housing), it is vital to avoid duplicating process or introducing multiple monitoring regimes. Information sharing should be rapid and seek to minimise bureaucracy. Local authorities should work alongside health and other professionals (such as housing) where plans are combined to establish a 'lead' organisation who undertakes monitoring and assurance of the combined plan (this may also involve appointing a lead professional and detailing this in the plan so the person knows who to contact when plans are combined). Particular consideration should be given to ensuring that processes are aligned, coherent and streamlined, to avoid confusing the person with different systems (see Chapter 14 on integration and cooperation).

Sign-off and assurance

10.81 The local authority must take all reasonable steps to agree with the person the manner in which the plan details how needs will be met, before the authority signs off the plan. Therefore, it should not introduce measures that place any undue burden on the person, especially where the person or third party is preparing the plan in conjunction with the local authority. The local authority should therefore avoid developing processes that undermine the joint preparation of plans, such as excessive quality control. For example, a local authority may have arrangements or contract with outside organisations/individuals to provide peer support for planning. If so, an important part of this contract should be around having agreement as to non-restrictive approaches that enhance the quality of plans and the local authority's trust in the detail as well as removing issues that can cause delay and problems.

10.82 The local authority's role where the person or third-party are undertaking the preparation of the plan jointly with the local authority includes overseeing and providing guidance for the completion of the plan; and ensuring that the plan sufficiently meets needs, is appropriate and represents the best balance between value for money and maximisation of outcomes for the person. For example, this may involve providing materials and approaches to support people jointly preparing the plan with the local authority. Where the local authority is preparing the plan on behalf of the person, or delegating this to a third-party to do so, the best interests of the person must be reflected throughout.

10.83 The local authority must take all reasonable steps to reach agreement with the person for whom the plan is being prepared. Wherever possible, local authority sign-off should occur when the person, any third party involved in the preparation of the plan and the local authority have agreed on the factors within the plan, including the final personal budget amount (which may have been subject to change during the planning process), and how the needs in question will be met. This is a key part of the planning process and the agreement should be recorded and a copy placed within the plan. Where an independent advocate has been involved, they should not be asked to sign off the plan - this is the responsibility of the local authority.

10.84 While there is no defined timescale for the completion of the care and support planning process, the plan should be completed in a timely fashion, proportionate to the needs to be met. Local authorities must ensure that sufficient time is taken to ensure the plan is appropriate to meet the needs in question, and is agreed by the person the plan is intended for. The planning process should not unduly delay needs being met.

10.85 Due regard should be taken to the use of approval panels in both the timeliness and bureaucracy of the planning and sign-off process. In some cases, panels may be an appropriate governance mechanism to sign-off large or unique personal budget allocations and/or plans. Where used, panels should be appropriately skilled and trained, and local authorities should refrain from creating or using panels that seek to amend planning decisions, micro-manage the planning process or are in place purely for financial reasons. Local authorities should consider how to delegate responsibility to their staff to ensure sign-off takes place at the most appropriate level. In cases or circumstances where a panel is to be used, and where an expert assessor has been involved in the care and support journey, the same person or another person with similar expertise should be part of the panel to ensure decisions take into account complex or specialist issues.

10.86 In the event that the plan cannot be agreed with the person, or any other person involved, the local authority should state the reasons for this and the steps which must be taken to ensure that the plan is signed-off. This may require going back to earlier elements of the planning process. People must not be left without support while a dispute is resolved. If a dispute still remains, and the local authority feels that it has taken all reasonable steps to address the situation, it should direct the person to the local complaints procedure. However, by conducting person-centred planning and ensuring genuine involvement throughout, this situation should be avoided.

10.87 Upon completion of the plan, the local authority must give a copy of the final plan which should be in a format that is accessible to the person for whom the plan is intended, any other person they request to receive a copy, and their independent advocate if they have one and the person agrees. This should not restrict local authorities from making the draft plan available throughout the planning process; indeed in cases where a person is preparing the plan in conjunction with the local authority, the plan should be in their possession. Consideration should also be given to sharing key points of the final plan with other professionals and supporters, with the person's consent (for example, as part of the person's health record), or sharing the plan in the best interests of a person who lacks capacity to decide on this matter.

Protecting property of adults being cared for away from home

10.88 Local authorities must take all reasonable steps to protect the moveable property of an adult with care and support needs who is being cared for away from home, in a hospital or in accommodation such as a care home, and who cannot arrange to protect their property themselves; this could include their pets as well as their personal property (for example, private possessions and furniture). Local authorities must act where it believes that if it does not take action there is a risk of moveable property being lost or damaged.

10.89 For example, protecting property may include arranging for pets to be looked after when securing premises for someone who is having their care and support needs provided away from home in a care home or hospital, and who has not been able to make other arrangements for the care of their home or pets.

10.90 In order to protect moveable property in these circumstances the local authority may enter the property, at reasonable times, with the adult's consent; but reasonable prior notice to enter should be given. If the adult lacks the capacity to give consent to the local authority entering the property, consent should be sought from a person authorised under the Mental Capacity Act 2005 to give consent on the adult's behalf. This might be:

10.91 If the adult in question lacks capacity and no other person has been authorised to act on their behalf, then the local authority must act in the best interests of the adult in accordance with section 4 of the Mental Capacity Act 2005.

10.92 If a third party tries to stop an authorised entry into the home then they will be committing an offence, unless they can give a good reason for why they are obstructing the local authority in protecting the adult's property. Committing such an offence could, on conviction by a Magistrates' Court, lead to the person being fined up to a maximum fine not exceeding level 4 on the standard scale. If a local authority intends to enter a home then it must give written authorisation to an officer of the council and that person must be able to produce it if asked for.

10.93 The local authority has no power to apply for a warrant to carry out their duties to protect property. The enforcement power is prosecution for unreasonable obstruction. However, if the Court decides the obstruction is reasonable then the local authority would have no further power to force entry.

10.94 This duty on the local authority lasts until the adult in question returns home or makes their own arrangements for the protection of property or until there is no other danger of loss or damage to property; whichever happens first. Often a one off event is required such as the re-homing of pets or ensuring that the property is secured. However, if costs are incurred or if there are ongoing costs the local authority can recover any reasonable expenses they incur in protecting property under this duty from the adult whose property they are protecting.

11. Personal budgets

This chapter provides guidance on Section 26 of the Care Act 2014 and the Care and Support (Personal Budget Exclusion of Costs) Regulations 2014, including:

11.1 Personal budgets are a key part of the government's aspirations for a person-centred care and support system. Independent research shows that where implemented well, personal budgets can improve outcomes and deliver better value for money. [footnote 40] [footnote 41] [footnote 42] [footnote 43]

11.2 The Act places personal budgets into law for the first time, making them the norm for people with care and support needs.

11.3 The personal budget is the mechanism that, in conjunction with the care and support plan, or support plan, enables the person, and their advocate if they have one, to exercise greater choice and take control over how their care and support needs are met. It means:

11.4 It is vital that the process used to establish the personal budget is transparent so that people are clear how their budget was calculated, and the method used is robust so that people have confidence that the personal budget allocation is correct and therefore sufficient to meet their care and support needs. The allocation of a clear upfront indicative (or 'ball-park') allocation at the start of the planning process will help people to develop the plan and make appropriate choices over how their needs are met.

11.5 The process of allocating the personal budget should be completed in a timely manner, proportionate to the needs to be met. At all times the person should be informed where they are in the care planning process, what will happen next and the likely timeframes.

11.6 This chapter applies to people in need of care and support and carers equally, unless specifically stated.

The personal budget

11.7 Everyone whose needs are met by the local authority, whether those needs are eligible, or if the authority has chosen to meet other needs, must receive a personal budget as part of the care and support plan, or support plan. The personal budget is an important tool that gives the person clear information regarding the money that has been allocated to meet the needs identified in the assessment and recorded in the plan. An indicative amount should be shared with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. The detail of how the personal budget will be used is set out in the care and support plan, or support plan. At all times, the wishes of the person must be considered and respected. For example, the personal budget should not assume that people are forced to accept specific care options, such as moving into care homes, against their will because this is perceived to be the cheapest option.

11.8 This allows the person, and anybody else the person wishes, to make informed decisions about how to meet their care and support needs. The person can choose for the personal budget allocation to remain with the local authority to arrange care and support on the person's behalf, and in line with their wishes. Alternatively, if available locally, it can be placed with a third-party provider on the same basis, often called an individual service fund ( ISF). Where an ISF-type arrangement is not available locally, the local authority should explore arrangements to develop this offer, and should be receptive to requests from personal budget recipients to create these arrangements with specified providers.

11.9 There may also be cases where a person prefers to use a mixed package of care and support. For example, this may be a direct payment to the person for some of their needs, with the remainder of the personal budget used to meet needs via local authority or third-party provision, or any combination of the above. The method of allocating the personal budget should be decided and agreed during the care and support planning process (see chapter 10). It is important that these arrangements can be subsequently adjusted if the person wishes this, with the minimum of procedure. The process for allocating and agreeing the personal budget via the planning process should be as straightforward and as timely as possible so that the person can access the budget without significant delay.

Elements of the personal budget

11.10 The personal budget must always be an amount sufficient to meet the person's care and support needs, and must include the cost to the local authority of meeting the person's needs which the local authority is under a duty to meet, or has exercised its power to do so. This overall cost must then be broken down into the amount the person must pay, following the financial assessment, and the remainder of the budget that the authority will pay.

11.11 The personal budget may also set out other amounts of public money that the person is receiving, such as money provided through a personal health budget. Local authorities should consider requests from individuals to present their personal budget in this way. Integrated health and care, and integration of other aspects of public support are the long-term vision of the government. This will provide the individual with a seamless experience, and can help to remove unnecessary bureaucracy and duplication that may exist where a person's needs are met through money from multiple funding streams.

11.12 Local authorities must carry out their care and support responsibilities with a view to promoting integration with health and other related services (such as housing), and therefore should take a lead in driving the integration of support services for their population. For example, this may involve agreeing with partner organisations how to integrate budgets and to what extent, and the establishment of a lead organisation that agrees to oversee monitoring and assurance of all budgets the person is receiving.

11.13 Where a local authority is meeting the eligible needs of a person whose financial resources are above the financial limit, but who has requested the local authority meet their needs, the local authority may make a charge for putting in place the necessary arrangements to meet needs (see chapter 8 on charging and financial assessment). Where this occurs, the local authority should consider how best to set this information out to the person, in a format accessible to them. This fee is not part of the personal budget, since it does not relate directly to meeting needs, but it may be presented alongside the budget to help the person understand the total charges to be paid. For example, a local authority may wish to specify this in both the plan and the personal budget for the person so all parties are clear on how costs are allocated.

11.14 Similarly, there will be cases where a person or a third party on their behalf is making an additional payment (or a 'top-up') in order to be able to secure the care and support of their choice, where this costs more than the local authority would pay for such a type of care. In these cases, the additional payment does not form part of the personal budget, since the budget must reflect the costs to the local authority of meeting the needs. However, the local authority should consider how best to present this information to the individual, so that the total amount of charges paid is clear, and the link to the personal budget amount is understood.

Elements of care and support that are excluded from the personal budget

11.15 Regulations set out the cases or circumstances where the costs of meeting the needs of care and support do not have to be incorporated into the personal budget. Because both the care and support plan and personal budget are mechanisms to enable people to have greater choice and control over their care and support, there are not many instances where this exclusion will apply.

11.16 The Care and Support (Personal Budget Exclusion of Costs) Regulations 2014 set out that the provision of intermediate care and reablement services, for which the local authority cannot or chooses not to make a charge [footnote 44] must be excluded from the personal budget. This will mean that where either intermediate care or reablement is being provided to meet needs (for example, under section 18, 19 or 20 of the Act) the cost of this must not be included in the personal budget.

11.17 Intermediate care services are usually provided to patients, often older people, after leaving hospital or when they are at risk of being sent to hospital. The services are a link between places such as hospitals and people's homes, and between different areas of the health and social care system - community services, hospitals, GPs and social care. 'Reablement' is a particular type of intermediate care, which has a stronger focus on helping the person to regain skills and capabilities to reduce their needs, in particular through the use of therapy or minor adaptations. There is a tendency for the terms 'reablement', 'rehabilitation' and 'intermediate care' to be used interchangeably. The National Audit of Intermediate Care categorises 4 types of intermediate care: crisis response - services providing short-term care (up to 48 hours); home-based intermediate care - services provided to people in their own homes by a team with different specialities but mainly health professionals such as nurses and therapists; bed-based intermediate care - services delivered away from home, for example, in a community hospital; and reablement - services to help people live independently, provided in the person's own home by a team of mainly social care professionals (see chapter 2 - preventing, reducing or delaying needs).

11.18 Three of the 4 types of intermediate care have historically been clinician-led and provided by health staff, with reablement being provided by local authorities. However, these are not concrete, mutually-exclusive categories - and, furthermore, with greater integration and co-operation between health and local authorities, there should be greater use of qualified staff from health and social care working together to provide intermediate care.

11.19 Local authorities should not include additional elements that would not normally be classified as intermediate care or reablement into this exclusion. Indeed, the Act restricts the regulations into specifying only care and support which the local authority cannot charge for, or chooses not to charge for. This ensures that long-term care and support will always be part of the personal budget, and in future, count towards the cap on care costs. Also, broader rehabilitation services could be included to an individual to meet identified health needs as part of a joint personal budget across health and social care.

11.20 Intermediate care/reablement should usually be provided as a free, universal service under section 2 of the Act, and therefore would not contribute to the personal budget amount. However, in some circumstances, a local authority may choose to combine either service with aspects of care and support to meet eligible or ongoing needs, which would require a personal budget to be developed. Removing the cost of provision of intermediate care/reablement from the personal budget in these scenarios ensures that the allocation of both services is applied uniformly across all local authorities, and in future people progress towards the cap on care costs in a fair and consistent way.

11.21 In cases where intermediate care/ reablement is provided to meet needs under section 18 or 20(1) or under section 19(1) or 20(6), either in isolation or combined with longer-term care and support, the plan should describe what the package consists of and how long it will last. This will help the person understand what is being provided to meet their needs. However, the person should not receive a personal budget, unless there are other forms of care and support being provided under these sections. In these cases, the personal budget amount must not include the cost of intermediate care/reablement which are provided free of charge.

Calculating the personal budget

11.22 It is important to have a consistent method for calculating personal budgets that provides an early indication of the appropriate amount to meet the identified needs to be used at the beginning of the planning process. Local authorities should ensure that the method used for calculating the personal budget produces equitable outcomes to ensure fairness in care and support packages regardless of the environment in which care and support takes place, for example, in a care home or someone's own home. Local authorities should not have arbitrary ceilings to personal budgets that result in people being forced to accept to move into care homes against their will.

11.24 Regardless of the process used, the most important principles in setting the personal budget are transparency, timeliness and sufficiency. This will ensure that the person, their carer, and their independent advocate if they have one, is fully aware of how their budget was calculated, that they know the amount at a stage which enables them to effectively engage in care and support planning, and that they can have confidence that the amount includes all relevant costs that will be sufficient to meet their identified needs in the way set out in the plan. The local authority should also explain that the initial indicative allowance can be increased or decreased depending on the decisions made during the development of the plan. This should prevent disputes from arising, but it must also be possible for the person, carer or independent advocate (on the person's behalf) to challenge the local authority on the sufficiency of the final amount. These principles apply to both the indicative upfront budget and the final signed=off personal budget that forms part of the care and support plan.

Transparency

Authorities should make their allocation processes publicly available as part of their general information offer, or ideally provide this on a bespoke basis for each person the authority is supporting in a format accessible to them. This will ensure that people fully understand how the personal budget has been calculated, both in the indicative amount and the final personal budget allocation. Where a complex RAS process is used, local authorities should pay particular consideration to how they will meet this transparency principle, to ensure people are clear how the personal budget was derived.

Timeliness

It is crucial when calculating the personal budget to arrive at an upfront allocation which can be used to inform the start of the care and support planning process. This 'indicative budget' will enable the person to plan how the needs are met. After refinement during the planning process, this indicative amount is then adjusted to be the amount that is sufficient to meet the needs which the local authority is required to meet under section 18 or 20(1), or decides to meet under section 19(1) or (2) or 20(6). This adjusted amount then forms the personal budget recorded in the care plan.

Sufficiency

The amount that the local authority calculates as the personal budget must be sufficient to meet the person's needs which the local authority is required to meet under section 18 or 20(1), or decides to meet under section 19(1) or (2) or 20(6) and must also take into account the reasonable preferences to meet needs as detailed in the care and support plan, or support plan.

11.25 The Act states the personal budget must be an amount that is the cost to the local authority of meeting the person's needs. In establishing the 'cost to the local authority', consideration should therefore be given to local market intelligence and costs of local quality provision to ensure that the personal budget reflects local market conditions and that appropriate care that meets needs can be obtained for the amount specified in the budget. To further aid the transparency principle, these cost assumptions should be shared with the person so they are aware of how their personal budget was established. Consideration should also be given as to whether the personal budget is sufficient where needs will be met via direct payments, especially around any other costs that may be required to meet needs or ensure people are complying with legal requirements associated with becoming an employer (see chapter 12). There may be concern that the 'cost to the local authority' results in the direct payment being a lesser amount than is required to purchase care and support from the local market due to local authority bulk purchasing and block contract arrangements. However, by basing the personal budget on the cost of quality local provision, this concern should be allayed.

11.26 However, a request for needs to be met via a direct payment does not mean that there is no limit on the amount attributed to the personal budget. There may be cases where it is more appropriate to meet needs via directly-provided care and support, rather than by making a direct payment. For example, where there is no local market for a particular kind of care and support that the person wishes to use the direct payment for, except for services provided by the local authority. It may also be the case where the costs of an alternate provider arranged via a direct payment would be more than the for what the local authority would be able to arrange the same support, whilst achieving the same outcomes for the individual.

11.27 In all circumstances, consideration should be given to the expected outcomes of each potential delivery route. It may be that by raising the personal budget to allow a direct payment from a particular provider, it is expected to deliver much better outcomes than local authority delivered care and support, or there may be other dynamics such as the preferred option reducing the need for travel costs, or out of hours care. In addition, efficiencies to the local authority (for example through an individual making their own arrangements) should also be considered. Decisions should therefore be based on outcomes and value for money, rather than purely financially motivated.

11.28 In cases where making a direct payment is a more expensive option to meet needs, the care plan should be reviewed to ensure that it is accurate and that the personal budget allocation is correct. The authority should work with the person, their carer and independent advocate (if there is one) to agree on how best to meet their care and support needs. It may be that the person can take a mixture of direct payment and local authority-arranged care and support, or the local authority can work with the person to discuss alternate uses for the personal budget. Essentially, these discussions will take place during the planning process and local authorities should ensure that their staff are appropriately trained to support personalised care and support, and to facilitate decision-making.

Example: Costs of direct payments 1

Andrew has chosen to meet his needs by receiving care and support from a PA. The local authority has a block contract with an agency which has been providing support to Andrew twice per week. Andrew would now like more flexibility in the times at which he receives support in order to better meet his needs by allowing him to undertake other activities and consider employment.

He therefore requests a direct payment so that he can make his own arrangements with another agency, which is happy to arrange a much more flexible and personalised service, providing Andrew with the same care worker on each occasion, and at a time that works best for him.

The cost to the local authority of the block contracted services is £13.50 per hour. However, the more flexible support costs £18 per hour (inclusive of other employment costs). The local authority therefore increases Andrew's direct payment from £67.50 to £90 per week to allow him to continue to receive the care he requires. The solution through a direct payment delivers better outcomes for Andrew and therefore the additional cost is reasonable and seen as value for money as it may delay future needs developing.

The local authority also agrees it is more efficient for them to allow Andrew to arrange and commission the hours he wants to receive support and handle the invoicing himself.

Example: Costs of direct payments 2

Following George's assessment of needs, the local authority work out an indicative personal budget of £135 per week, based on their block contract rate of £13.50 per hour as an indication of the potential costs to meet his needs.

During care planning, George states that he has a neighbour that has recently trained to become a personal assistant, and George indicates a preference to use a direct payment to employ the neighbour instead of an arranged service.

The local authority is satisfied that George will be able to manage the direct payment, and that he understands his responsibilities as an employer. George wants to pay the PA above the living wage and has provisionally agreed a hourly rate of £9 per hour.

The local authority agrees to this as George agrees that it will meet his needs and outcomes. The final personal budget is adjusted to £110 per week which factors in the new hourly rate, plus an additional allowance for employment responsibilities (PAYE, NI, insurance)

Use of the personal budget

11.29 The person should have the maximum possible range of options for managing the personal budget, including how it is spent and how it is utilised. Directing spend is as important for those choosing the council-managed option or individual service fund as for those choosing direct payments. Evidence suggests that people using council-managed personal budgets are currently not achieving the same level of outcomes as those using direct payments, and in too many cases do not even know they have been allocated a personal budget.

11.30 There are 3 main ways in which a personal budget can be deployed:

as a managed account held by the local authority with support provided in line with the persons wishes

as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the persons wishes [footnote 45]

as a direct payment

11.31 In addition, a person may choose a 'mixed package' that includes elements of some or all 3 of the approaches above. Local authorities must ensure that whatever way the personal budget is used, the decision is recorded in the plan and the person is given as much flexibility and choice as is reasonably practicable in how their needs are met. The mixed package approach can be a useful option for people who are moving to direct payments for the first time. This allows a phased introduction of the direct payment, giving the person time to adapt to the direct payment arrangements.

11.33 Where there are no ISF arrangements available locally, the local authority should consider establishing this as an offer for people. Additionally, the local authority should reasonably consider any request from a person for an ISF arrangement with a specified provider.

Examples: Using individual service funds

Sally really enjoys dancing and night clubs and she needs support for this. Sally's ISF arrangement with her provider has given her the flexibility to employ staff that also like to do this, and they are paid time and a half after 11:00pm. The ISF arrangement also allows Sally to convert 'standard hours' into 'enhanced hours', for example, 6 standard hours equals 4 enhanced hours. Sally can plan late nights out knowing what it 'costs' from her allocation of 24 standard hours support, which is calculated from her personal budget.

Brian's ISF arrangement with his provider allows him to save up and then convert the hours of his support into money to purchase personal trainer time at a local gym. In addition to promoting wellbeing in the areas of emotional and social wellbeing and personal relationships, these arrangements also demonstrate the local authority's regard for the importance of beginning with the assumption that an individual is best-placed to judge their own wellbeing.

11.34 Local authorities should also give consideration to how choice could be increased by people pooling their budgets together. For example, this may include pooling budgets of people living in the same household such as an adult and carer, or pooling budgets of people within a community with similar care and support needs, or aspirations. Pooling budgets in circumstances such as this may deliver increased choice, especially where managed budgets are concerned. Developing networks of 'budget poolers' could help create dynamic groups of people working together to meet needs.

11.35 Evidence suggests that in most cases people need to know the amount of their budget, be able to choose how it is managed, and have maximum flexibility in how it is used to achieve the best outcomes. Therefore the process and practice for personal budgets should follow the key principles of self-directed support. Local authorities should aim to develop a range of means to enable anyone to make good use of direct payments and where people choose other options, should ensure local practice that maximises choice and control (for example use of Individual Service Funds). Local authorities should also take care not to inadvertently limit options and choices. For example 'pre-paid cards' can be a good option for some people using direct payments, but must not be used to constrain choice or be only available for use with a restricted list of providers.

Use of a carer's personal budget

11.36 Specific consideration should be given to how a personal budget will be used by carers. The Act specifies that a carer's need for support can be met by providing care to the person they care for. However, decisions on for whom a particular service is to be provided may affect issues such as whether the service is chargeable, and who is liable to pay any charges. It is therefore important that it is clear to all individuals involved whose needs are intended to be met by a particular type of support, to whom the support will be provided directly, and therefore who may pay any charges due. Where a service is provided directly to the adult needing care, even though it is to meet the carer's needs, then that adult would be liable to pay any charge, and must agree to doing so. Section 14 of the Act makes clear that where the needs are met by providing care and support direct to the adult needing care, the charge may not be imposed on the carer.

11.37 Decisions on which services are provided to meet carers' needs, and which are provided to meet the needs of the adult for whom they care, will therefore impact on which individual's personal budget includes the costs of meeting those needs. Local authorities should make this decision as part of the care planning process, in discussion with the individuals concerned, and should consider whether joint plans (and therefore joint personal budgets) for the 2 individuals may be of benefit.

11.38 Local authorities should consider how to align personal budgets where they are meeting the needs of both the carer and the adult needing care concurrently. Where an adult has eligible needs for care and support, and has a personal budget and care and support plan in their own right, and the carer's needs can be met, in part or in full, by the provision of care and support to that person needing care, then this kind of provision should be incorporated into the plan and personal budget of the person with care needs, as well as being detailed in a care and support plan for the carer.

Examples: Flexible use of a carer's personal budget

Conor has been caring for his wife, who is in a wheelchair with ME and arthritis, for the last 9 years. He does all the cooking, driving and general household duties for their household. Conor received a personal budget which he requested in the form of a direct payment from his local authority for a laptop to enable him to be in more regular contact through Skype with family in the US. This now enables Conor to stay connected with family he cannot afford to fly and see. This family support helps Connor with his ongoing caring role.

Divya has 4 young children and provides care for her father who is nearing the end of his life. Her father receives a direct payment, which he used to pay a family member for a period of time to give his daughter a break from her caring role. Divya received a carers' direct payment, which she uses for her children to attend summer play schemes so that she get some free time to meet with friends and socialise when the family member providers care to her father. This gives Divya regular breaks from caring which are important to the family unit.

11.39 'Replacement care' may be needed to enable a carer to look after their own health and wellbeing alongside caring responsibilities, and to take a break from caring. For example, this may enable them to attend their own health appointments, or go shopping and pursue other recreational activities. It might be that regular replacement care overnight is needed so that the carer can catch up on their own sleep. In other circumstances, longer periods of replacement care may be needed, for example to enable carers to have a longer break from caring responsibilities or to balance caring with education or paid employment. In these circumstances, where the form of the replacement care is essentially a homecare service provided to the adult needing care that enables the carer to take a break, it should be considered a service provided to the cared-for person, and thus must be charged to them, not the carer.

11.40 The carer's personal budget must be an amount that enables the carer to meet their needs to continue to fulfil their caring role, and takes into account the outcomes that the carer wishes to achieve in their day to day life. This includes their wishes and/or aspirations concerning paid employment, education, training or recreation if the provision of support can contribute to the achievement of those outcomes. The manner in which the personal budget will be used to meet the carer's needs should be agreed as part of the planning process.

11.41 Local authorities must have regard to the wellbeing principle of the Act, as it may be the case that the carer needs a break from caring responsibilities to look after their own physical/mental health and emotional wellbeing, social and economic wellbeing and to spend time with other members of the family and personal relationships. Whether or not there is a need for replacement care, carers may need support to help them to look after their own wellbeing. This may be, for example, a course of relaxation classes, training on stress management, gym or leisure centre membership, adult learning, development of new work skills or refreshing existing skills (so they might be able to stay in paid employment alongside caring or take up return to paid work), pursuit of hobbies such as the purchase of a garden shed, or purchase of a laptop so they can stay in touch with family and friends.

Carers' personal budgets where the adult being cared for does not have eligible needs

11.42 The Act makes clear that the local authority is able to meet the carer's needs by providing a service directly to the adult needing care. However, there may be instances where the adult being cared for does not have eligible needs, so does not have their own personal budget or care plan. In these cases, the carer must still receive a support plan which covers their needs, and how they will be met. This would specify how the carer's needs are going to be met (for example, via replacement care to the adult needing care), and the personal budget would be for the costs of meeting the carer's needs.

11.43 The adult needing care would not receive a personal budget or care plan, because no matter what the service is in practice, it is designed to meet the carer's needs. However, it is essential that the person requiring care is involved in the decision-making process and agrees with the intended course of action.

11.44 In situations such as these, the carer could request a direct payment, and use that to commission their own replacement care from an agency, rather than using an arranged service from the local authority or a third party. The local authority should take steps to ensure that the wishes of the adult requiring care are taken into account during these decisions. For example, the adult requiring care may not want to receive replacement care in this manner.

11.45 If such a type of replacement care is charged for (and it may not be), then it would be the adult needing care that would pay, not the carer, because they are the direct recipient of the service. This is in part why it is so important that the adult needing care agrees to receiving that type of care. The decisions taken by the carer and adult requiring care and charging implications should be agreed and recorded in the support plan. If a dispute arises and the person refused to pay the charge, the local authority must, as far as it is feasible, identify some other way of supporting the carer.

11.46 For the purposes of charging, the personal budget which the carer receives must specify the costs to the local authority and the costs to the adult, based on the charging guidance (see chapter 8). In this case, 'the adult' refers to the carer, because they are the adult whose needs are being met. However, in instances where replacement care is being provided, the carer should not be charged; if charges are due to be paid then these have to be met by the adult needing care. Any such charges would not be recorded in the personal budget, but should be set out clearly and agreed by those concerned.

Disputes

11.47 The local authority should take all reasonable steps to limit disputes regarding the personal budget allocation. This will include through effective care and support planning, and transparency in the personal budget allocation process. Additionally, many disputes may be avoided by informing people of the timescales that are likely to be involved in different stages of the process. Keeping people informed how their case is progressing may help limit the number of disputes.

11.48 Current complaints provision for care and support is set out in regulations. [footnote 46] The provisions of the regulations mean that anyone who is dissatisfied with a decision made by the local authority can make a complaint about that decision and have that complaint handled by the local authority. The local authority must make its own arrangements for dealing with complaints in accordance with the 2009 regulations.

12. Direct payments

This chapter covers:

making direct payments available

considerations for adults with and without capacity

administering, monitoring and reviewing direct payments

using the direct payment

paying family members

short-term and long-term care in a care home

becoming an employer

direct payments and hospital stays

direct payments for local authority services

direct payments in the form of pre-payment cards

harmonisation of direct payments

terminating direct payments

12.1 Direct payments are monetary payments made to individuals who request to receive one to meet some or all of their eligible care and support needs. The legislative context for direct payments is set out in the Care Act, Section 117(2C) of the Mental Health Act 1983 (the 1983 Act) and the Care and Support (Direct Payments) Regulations 2014.

12.2 Direct payments have been in use in adult care and support since the mid-1990s and they remain the Government's preferred mechanism for personalised care and support. They provide independence, choice and control by enabling people to commission their own care and support in order to meet their eligible needs. [footnote 47]

12.3 Direct payments, along with personal budgets and personalised care planning, mandated for the first time in the Care Act, provide the platform with which to deliver a modern care and support system. People should be encouraged to take ownership of their care planning, and be free to choose how their needs are met, whether through local authority or third-party provision, by direct payments, or a combination of the 3 approaches.

12.4 For direct payments to have the maximum impact, the processes involved in administering and monitoring the payment should incorporate the minimal elements to allow the local authority to fulfil its statutory responsibilities. These processes must not restrict choice or stifle innovation by requiring that the adult's needs are met by a particular provider, and must not place undue burdens on people to provide information to the local authority. An effective monitoring process should also go beyond financial monitoring, and include aspects such as identifying wider risks and issues, for example non-payment of tax, and provision of employers' liability insurance where this is appropriate.

12.5 The local authority also has a key role in ensuring that people are given relevant and timely information about direct payments, so that they can make a decision whether to request a payment, and, if doing so, are supported to use and manage the payment appropriately. The route to a direct payment is for a person to request one, but the local authority should support the person's right to make this request by providing information and advice as detailed above. People must not be forced to take a direct payment against their will, but instead be informed of the choices available to them.

12.6 This chapter should be read in conjunction with the sections on care and support planning and personal budgets (see chapters 10 and 11), and applies to people in need of care and support and carers equally, unless specifically stated.

Making direct payments available

12.7 The availability of direct payments should be included in the universal information service that all local authorities are required to provide. This should set out:

what direct payments are

how to request one including the use of nominated and authorised persons to manage the payment

explanation of the direct payment agreement and how the local authority will monitor the use of the direct payment

the responsibilities involved in managing a direct payment and being an employer;

making arrangements with social care providers

signposting to local organisations (such as user-led organisations and micro-enterprises) and the local authority's own internal support, who offer support to direct payment holders, and information on local providers

case studies and evidence on how direct payments can be used locally to innovatively meet needs [footnote 48]

12.8 This will allow people to be fully aware what direct payments are and whether they are something that are of interest. In addition to this general information, authorities must also explain to people what needs could be met by direct payments during the care and support planning process.

12.9 Local authorities have a crucial role to play in promoting the use of direct payments, and enabling people to make requests to receive direct payments in an efficient way. However, the gateway to receiving a direct payment must always be through the request from the person. Local authorities must not force people to take a direct payment against their will, or allow people to be placed in a situation where the direct payment is the only way to receive personalised care and support. However, local authorities are encouraged to prompt people to consider direct payments and how they could be used to meet needs.

Steps following a request to receive direct payments

12.10 It is expected that most requests to receive direct payments will occur during the care planning stage as this is when authorities must inform the person of the needs that could be met via direct payments. However, local authorities must consider requests for direct payments made at any time, and have clear and swift processes in place to respond to the requests. For example, a person may request a direct payment before a scheduled or anticipated review. In these cases, the local authority must assess the request on the same basis as a request made during care planning. In practice, it may be convenient to consider the request at the same time as a review of the care plan. In these cases, the review should be brought forward so as not to delay the consideration of the direct payment request (see chapter 13 on reviews). The steps to follow after receiving a request for a direct payment will depend on whether the person has been assessed as having capacity to make a decision about direct payments or not, which should have taken place at the assessment of needs (see chapter 6).

Assessing capacity

The following considerations should be made when assessing capacity:

12.11 Mental capacity is the ability to make a decision. Under the 2005 Mental Capacity Act, a person lacks capacity in relation to a matter if, at the material time, they are unable to make a decision in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

12.12 Assessments of capacity must always be made on a case-by-case basis, in relation to the specific decision to be made. Assumptions should not be made due to the existence of a particular condition, nor on whole groups of people.

12.13 Consideration should also be given to whether capacity is constant or likely to fluctuate. Where it is clear that fluctuating capacity is a known issue, or likely to be, this should be covered in the care plan which details the steps to take where capacity fluctuates. The Care and Support (Direct Payments) Regulations 2014 allow for direct payments to continue to be made in cases of fluctuating capacity (see paras. 12.67-12.68 on terminating direct payments).

Adults with capacity

12.14 Where the local authority is satisfied that the person has capacity to make a request for direct payments to cover some or all of their care needs, it must consider each of the 4 conditions in section 31 of the Care Act. These conditions need to be met in their entirety; a failure in one would result in the request to receive a direct payment being declined. The conditions are:

12.15 The authority must clarify at the earliest stage possible where the request originates from. The Care Act provides a power to enable direct payments to be made to the person in need of care and support, or a nominated person acting on their behalf if the adult so requests. Where a nominated person has been requested to receive the direct payment, the authority should involve the nominated person in any appropriate stages of the care planning journey, such as the development of the care plan, as long as the person with care needs agrees to this. Where the person does not specifically request this involvement, the local authority should consider whether to encourage the person to make that request. During this process, the nominated person should receive information regarding the local authorities direct payments processes, as well as information and advice on using and managing the direct payment, so that the nominated person understands their legal obligations as the direct payment recipient to act in the best interests of the person requiring care and support (see paras. 12.48-12.51 on becoming an employer). The local authority must also satisfy itself that the nominated person meets the conditions in Section 31 of the Act.

Adults lacking capacity

12.16 In cases where the person in need of care and support has been assessed as lacking capacity to request the direct payment, an authorised person can request the direct payment on the person's behalf. In these cases, the local authority must satisfy itself that the person meets the 5 conditions as set out in section 32 of the Care Act.

12.17 As with direct payments for people with capacity, each of these conditions must be met in their entirety. Failure to meet any of the conditions would result in the request being declined. The conditions are:

Consideration of the request

12.18 After considering the suitability of the person requesting the direct payment against the appropriate conditions in the Care Act, the local authority must make a determination whether to provide a direct payment. Where accepted, the decision should be recorded in the care plan, or support plan. Where refused, the person or person making the request should be provided with written reasons that explain the decision, and be made aware of how to appeal the decision through the local complaints process.

12.19 The Care Act defines one of the conditions to be met is that the direct payment is an appropriate way to meet the needs in question (or, in respect of after-care services, an appropriate way to discharge its duty under section 117 of the 1983 Act). [footnote 49] Local authorities must not use this condition to arbitrarily decline a request for a direct payment. For example, there may be instances where a person is obliged to receive services as a condition of mental health legislation (including a community treatment order, guardianship or leave of absence from hospital under the Mental Health Act or provisions in other mental health legislation). In these cases, although the person is being obliged to receive services rather than choosing to present for services, it may still be appropriate to give the person the responsibility of meeting their needs via a direct payment, if this is what is requested. Particular consideration should be given to these cases when applying the conditions set out in the Act. In all cases, appropriateness is for local authorities to determine, although it is expected that in general, direct payments are an appropriate way to meet most care and support needs.

12.20 However, there may be cases where a direct payment is not appropriate to meet needs. The Regulations set out that direct payments cannot be made to people subject to a court order for a drug or alcohol treatment program or similar schemes (schedule 1 of the Regulations).

12.21 A further condition is that the local authority must be satisfied that the person is able to manage the direct payment by him or herself, or with whatever help or support the person will be able to access. Local authorities should therefore take all reasonable steps to provide this support to whoever may require it. To comply with this, many local authorities have contracts with voluntary or user-led organisations that provide support and advice to direct payment holders, or to people interested in receiving direct payments. This condition should not be used to deny a person from receiving a direct payment without consideration of support needs. Consideration should also be given to involving a specialist assessor in determination of support requirements, in particular if one was used earlier in the care and support process (such as assessment).

12.22 In all cases, the consideration of the request should be concluded in as timely a manner as possible. Where the request for a direct payment has been declined, the person in need of care and support, and any other person involved in the request (for example, nominated or authorised person) should (subject to Data Protection Act requirements) receive the reasons in a format that is accessible to them. This should set out which of the conditions in the Care Act have not been met, the reasons as to why they have not been met, and what the person may need to do in the future to obtain a positive decision. The consideration stage should be performed as quickly as is reasonably practicable, and the local authority must provide interim arrangements to meet care and support needs to cover the period in question.

Case Study: Making direct payments support accessible

Abdul is a deafblind man; to communicate he prefers to use Braille, Deafblind Manual and email. He directly employs several staff through direct payments. He receives payroll support from his local direct payments support service. Abdul suggested ways to make direct payments management accessible to him. He communicates with the support service mainly via email but they also use Typetalk.

At the end of the month, Abdul emails the support service with details of the hours that his staff have worked. The support service work out any deductions from pay (such as National Insurance and Income Tax) and email him to tell him how much he should pay the staff via cheque. They then send him pay slips to be given to staff. The envelope that the payslips are sent in has 2 staples in the corner so that he knows who the letter is from. The payslips themselves are labelled in Braille so that he knows which staff to give them to.

Each quarter, the support service tells him how much he needs to pay on behalf of his employees in National Insurance and Income Tax. The service also fills in quarterly Inland Revenue paperwork. At the end of the year, the support service sends relevant information to the council, so that they are aware of how the direct payments are being spent.

Abdul has taken on only some of the responsibilities of employing people; he has delegated some tasks to the support service. Control still remains with Abdul and confidentiality is maintained by using accessible labelling. In terms of the wellbeing principle, the local authority has promoted Abdul's control over his day-to-day life.

12.23 Where the request has been declined, the local authority should continue the care planning process so that it can seek to agree with the person how best to meet the needs, without the use of direct payments (see chapter 10 on care and support planning).

Administering direct payments

12.24 The local authority must be satisfied that the direct payment is being used to meet the care and support needs set out in the plan, and should therefore have systems in place to proportionally monitor direct payment usage to ensure effective use of public money. The Care and Support (Direct Payments) Regulations 2014 set out that the local authority must review the making of direct payments initially within 6 months, and thereafter every 12 months, and must not require information to be provided more often and in more detail than is reasonably required for the purpose of enabling the authority to know that making direct payment is still an appropriate way of meeting the needs, and that conditions upon which it is made are met. Local authorities should not design systems that place a disproportionate reporting burden upon the individual. The reporting system should not clash with the policy intention of direct payments to encourage greater autonomy, flexibility and innovation. For example, people should not be requested to duplicate information or have onerous monitoring requirements placed upon them. Monitoring should be proportionate to the needs to be met and the care package. Thus local authorities should have regard to lowering monitoring requirements for people that have been managing direct payments without issues for a long period.

12.25 The amount of the direct payment is derived from the personal budget as set out in the care and support plan, or support plan, and thus must be an amount which is sufficient to meet the needs the local authority has a duty or power to meet. The direct payment amount will reflect whether the person is required to make any financial contributions, or is requesting a direct payment for only a part of their care and support requirements. Local authorities cannot require financial contributions for a direct payment for after care services under the MHA; these must be provided without charge.

Example: Reduced monitoring

Gina has a stable condition and has been successfully managing her direct payment for over 2 years. The local authority therefore decides to reduce monitoring to the lowest level due to the low perceived risk (while still complying with the required review in the Act and Regulations). Gina is now considered to have the skills and experience to manage on her own unless the local authority request otherwise or information suggested otherwise comes to the attention of the local authority.

12.26 It is ultimately for authorities to decide whether payments are made on a gross or net basis in consultation with appropriate stakeholders. However, local authorities who operate systems of providing gross direct payments should consider the benefits of moving to net payments as these reduce transaction and process costs for both the authority and the person receiving the direct payment. [footnote 50]

12.27 The local authority should have regard to whether there will be costs such as recruitment costs, Employers' National Insurance Contributions, and any other costs by reason of the way in which the adult's needs will be met with the direct payment. [footnote 51] If these costs will be incurred their amount must be included in the personal budget (and thus direct payment) if it is appropriate for the adult to meet the needs in a way which incurs the costs. Some local authorities include one-off payments within the direct payment to cover these factors. In addition, other authorities have commissioned support services such as brokerage, payroll and employment advice as part of their general direct payment offer.

12.28 Where a direct payment recipient is using their payment to employ a personal assistant ( PA) or other staff, the local authority should ensure that there are clear plans in place of how needs will be met in the event of the PA being absent, for example due to sickness, maternity or holiday. Local authorities still have a duty to ensure needs are being met, even if the person makes their own arrangements via the direct payment, so contingencies may be needed. Where appropriate, these should be detailed in the care and support plan, or support plan.

12.29 Specific information should also be given to people about the requirements to have plans in place for redundancy payments due to circumstances such as moving home, a change in care and support needs, or the result of the death of the direct payment holder, or care recipient. If the person meets needs by directly employing someone, they will be responsible for all costs of employment including redundancy payments and this should be made clear to people as part of the information and advice process before a decision is made whether to request direct payments. The local authority must ensure that the direct payment is sufficient to meet these costs if it is appropriate for the adult to meet their needs by employing someone.

12.30 Normally, if someone dies any employment liabilities will be met by the person's estate, but with direct payments local authorities and adults have freedom to develop their own arrangements for dealing with this issue. This could include using any unspent direct payment to contribute to any redundancy costs, having insurance in place that covers redundancy, or the local authority agreeing to cover redundancy payments through the direct payment amount.

12.31 Whatever arrangements are made it is important that the local authority and direct payment holder are both clear as to their responsibilities in this regard to avoid any disputes at a sensitive time for family and carers. Decisions made should be recorded in care plans.

12.32 Local authorities should also consider how to recover unspent direct payments if the recipient dies. For example, if someone wishes to pay an agency in advance for its services, the local authority should bear in mind that it may be difficult to recover money paid for services that were not in fact delivered. Local authorities should also consider, if the direct payment recipient does leave unspent funds to be recovered, that before their death the direct payment recipient may have incurred liabilities that should legitimately be paid for using the direct payments (for example, they received services for which payment had not been made at the time of death). Local authorities may need to consider any redundancy costs payable to personal assistants and be prepared to provide advice on how these might be met. As with other costs the personal budget must be a sufficient amount to meet the person's needs, including the provision of any redundancy costs, if appropriate to meet needs, and subject to other arrangements that may have been made.

12.33 Local authorities should ensure all direct payment recipients are supported and given information in regards to having the correct insurance cover in place. Direct payments recipients should be given support to understand the benefits that insurance cover can provide, and the direct payment should therefore include an amount to cover the cost of employers' liability insurance and any other insurance that is required in order that the person can meet their needs in the way specified in the care plan.

12.34 The local authority must also have regard to where the direct payment can be integrated with other forms of public funding, such as personal health budget direct payments. Where this is apparent, the local authority should take steps to work with partners to combine the payments, as long as the person and all parties agree. For example, the local authority could agree with the NHS that the social care and health direct payments are combined and that the monitoring is performed solely by one organisation, reporting to the other as appropriate. This will avoid the person having multiple bank accounts, and having to supply similar information to public bodies to account for direct payment spend, while allowing both bodies to meet their statutory responsibilities.

Using the direct payment

Paying family members

12.35 The direct payment is designed to be used flexibly and innovatively and there should be no unreasonable restriction placed on the use of the payment, as long as it is being used to meet eligible care and support needs.

Example: Direct Payment to pay a family member for administration support

David has been using direct payments to meet his needs for some time, and has used private agencies to provide payroll and administration support, funded by a one-off annual payment as part of his personal budget allocation. David's wife, Gill provides care for him and is increasingly becoming more hands-on in arranging multiple PAs to visit and other administrative tasks as David's care needs have begun to fluctuate.

They jointly approach the local authority to request that Gill undertake the administration support instead of the agency as they want to take complete control of the payment and care arrangements so that they can best meet David's fluctuating needs and ensure that appropriate care is organized.

The local authority considers that Gill would be able to manage this aspect of the payment, and jointly revises the care plan to detail the aspects of the payment, and what services Gill will undertake to the agreement of all concerned. The personal budget is also revised accordingly.

The family now has complete control of the payment, Gill is reimbursed for her time in supporting David with his direct payment and the local authority is able to make a saving in the one-off support allocation as there are no provider overheads to pay. In promoting David's wellbeing, the local authority has demonstrated regard for the balance between promoting an individual's wellbeing and that of people who are involved in caring for them. It has given Gill increased control in a way that David is comfortable with and supports.

12.36 The 2009 Direct Payment Regulations excluded the payment from being used to pay for care from a close family member living in the same household, except where the local authority determined this to be necessary. [footnote 52] While the Care and Support (Direct Payments) Regulations 2014 maintain this provision regarding paying a family member living in the same household for care, it provides a distinction between 'care' and 'administration/management' of the direct payment. This allows people to pay a close family member living in the same household to provide management and/or administrative support to the direct payment holder in cases where the local authority determines this to be necessary. This is intended to reflect the fact that in some cases, especially where there are multiple complex needs, the direct payment amount may be substantial.

Example: Direct payment paid to a family member where necessary

James has severe learning difficulties as well as various physical disabilities. He has serious trust issues and a unique way of communicating that only his family, through years of care as a child, can understand. The local authority agrees that using a direct payment to pay for care from his parents is necessary as it is the best way to meet James's needs and outcomes.

12.37 The management and administration of a large payment, along with organising care and support can be a complex and time consuming task. This allows family members performing this task to be paid a proportion of the direct payment, similar to what many direct payment holders pay to third-party support organisations, as long as the local authority allows this.

12.38 This is not intended to be income replacement, and people interested in requesting this option should be informed of tax and employment implications, any impacts upon other benefits and given (or signposted to) information and advice to help them decide. The local authority should be satisfied that it is necessary to make the payment to the family member to provide this service and that the direct payment will only be used for administration and management of the payment. The circumstances and payment amount should be decided and agreed with the person requiring care and support, the family member, local authority and any other person (for example, advocate), with the local authority taking steps to ensure all parties agree.

12.39 These decisions should be recorded in the care plan and include the amount of the payments, their frequency and the activities that are covered. This arrangement must also be taken into account during allocation of the personal budget so that the amount remains sufficient to meet the person's needs.

12.40 Local authorities will need to have in place agreement between all parties about what steps to take in case of a dispute regarding the management of the payment by a household family member. This will be especially relevant where the person providing administrative and management is also the nominated or authorised direct payment recipient. It would not be appropriate to allow this where there is a risk that the direct payment may be abused, or there are other sensitivities such as potential safeguarding issues.

Short-term care in a care home

12.41 Direct payments cannot currently be used to pay for people to live in long-term care home placements. They can be made to enable people to purchase for themselves a short stay in care homes, provided that the stay does not exceed a period of 4 consecutive weeks in any 12-month period. This could be used to provide a respite break for a carer, for example.

12.42 The Regulations specify that where the interim period between 2 stays in care homes is less than 4 weeks, then the 2 stays should be added together to make a cumulative total, which should also not exceed 4 weeks if it is to be paid for with direct payments. On the other hand, if 2 stays in care homes are more than 4 weeks apart then they are not added together.

12.43 Once a direct payment recipient has had 4 consecutive weeks in care homes, or 2 or more periods separated by less than 4 weeks which added together total 4 weeks, then they cannot use their direct payments to pay for any more home services care until 12 months have passed from the start of the 4-week period. On the other hand, as long as each stay is less than 4 weeks and there is an interim period of at least 4 weeks between 2 or more stays which added together exceed 4 weeks, then the service recipient may use their direct payments to pay for residential breaks throughout the year.

Example: Direct Payments for short-term residential care

Mrs. H has one week in a care home every 6 weeks. Because each week in a care home is more than 4 weeks a part, they are not added together. The cumulative total is only one week and the 4-week limit is never reached.

Peter has 3 weeks in a care home, 2 weeks at home and then another week in a care home. The 2 episodes of time in a care home are less than 4 weeks apart and so they are added together making 4 weeks in total. Peter cannot use his direct payments to purchase any more care home services within a 12-month period.

12.44 People can receive additional weeks in a care home once they have reached the 4-week maximum. They cannot purchase the stay using their direct payments, but if the local authority and the person agrees that a longer stay is needed, it can still arrange and fund stays for the person. There is no restriction on the length of time for which the local authority may arrange such accommodation for someone (see chapter 8 for guidance on choice of accommodation).

12.45 The time limit is imposed to promote people's independence and to encourage them to remain at home rather than moving into long-term home placement. Where a person is constantly using the direct payment to pay for a short-term care home stays, the local authority should consider whether to conduct a review to ensure that the care plan is still meeting needs.

Long-term care in a care home

12.46 People who are living in care homes may receive direct payments in relation to non-residential care services. For example, they may have temporary access to direct payments to try out independent living arrangements before making a commitment to moving out of their care home. Direct payments can also be used by people living in care homes to take part in day-time activities. This can be particularly empowering for young people in transition (see chapter 16).

12.47 Direct payments cannot currently be used to secure long-term stays in a care home. However, the government intends to extend rights to direct payments in such circumstances from April 2020, to coincide with the introduction of the cap on care costs. Approaches to the use of direct payments in care homes has been trialled in a number of local authorities which were designated trailblazers and specified in the regulations The learning from this trailblazer programme will be used to develop additional statutory guidance for local authorities when direct payments for long-term stays in care homes is introduced for all local authorities in 2020. Trailblazers were asked if they wished to remain on the schedule of those local authorities not prohibited from making a direct payment for the purposes of securing long term care in a care home until national rollout in 2020 and the regulations were amended accordingly.

Becoming an employer

12.48 Local authorities should give people clear advice as to their responsibilities when managing direct payments, and whether the person in receipt of direct payments needs to register with HM Revenue & Customs ( HMRC) as an employer. Becoming an employer carries with it certain responsibilities and obligations, in particular to HMRC and people need to be aware of these before agreeing to take up a direct payment. Disability and tax - a guide provides information on being an employer.

12.49 The local authority should consider using the proportionality principle, whether to carry out checks to make sure any PAYE income tax and National Insurance contributions deducted from an employee's pay is in turn paid over to HMRC, and that employment payments do not breach the national minimum wage and conform to pension requirements if eligible. Some people may not need this check to be performed, but it may be more appropriate in other cases and conform to pension requirements if eligible. [footnote 53]

Where it becomes clear that payments, or returns detailing employee information deductions, have not been made, or that the individual is failing to meet their obligations as an employer generally, the direct payment scheme should be reviewed and consideration given to whether alternative arrangements that result in the direct payment recipient no longer acting as the employer need to be made. Not doing so may result in the individual building up arrears of tax and National Insurance due to HMRC, which may then lead to enforcement action to recover any debt. This situation should be able to be avoided by effective monitoring where appropriate, and by providing clear, accessible upfront information about the responsibilities of becoming an employer. Many local authorities have commissioned voluntary and charity organisations to provide support to direct payment holders on these matters.

12.51 Where a person wishes to directly employ their own PA, the local authority should also have regard to the guidance published by Skills for Care detailing minimum levels of support for individual employers and PAs. This guidance recommends local authorities should provide on-going support through access to training activities in a variety of ways and promote the Workforce Development Fund. It also proposes that local authorities promote apprenticeships for PAs.

Direct payments and hospital stays

12.52 There may often be occasions when direct payment holders require a stay in hospital. However, this should not mean that the direct payment must be suspended while the individual is in hospital. Where the direct payment recipient is also the person requiring care and support, consideration should be given to how the direct payment may be used in hospital to meet non-health needs or to ensure employment arrangements are maintained. Suspending or even terminating the payment could result in the person having to break the employment contract with a trusted personal assistant, causing distress and a lack of continuity of care when discharged from hospital.

12.53 In these cases, the local authority should explore with the person, their carer and the NHS the options to ensure that both the health and care and support needs of the person are being fully met in the best way possible. For example, the person may prefer the personal assistant to visit hospital to help with personal care matters. This may be especially so where there has been a long relationship between the direct payment holder and the personal assistant. This should not interfere with the medical duties of hospital personnel, but be tailored to work alongside health provision.

12.54 In some cases, the nominated or authorised person managing the direct payment may require a hospital stay. In these cases, the authority must conduct an urgent review to ensure that the person continues to receive care and support to meet their needs. This may be through a temporary nominated/ authorised person, or through short-term authority arranged care and support.

Example: Using a direct payment whilst in hospital

Peter is deafblind and is required to stay in hospital for an operation. Whilst the hospital pays for an interpreter for the medical interventions, Peter needs additional support to be able to move around the ward, and to communicate informally with staff and his family. The local authority and the NHS Trust agree that Peter's communicator guide continues to support him in hospital, and is paid for via the direct payment, as it was when Peter was at home. Personal and medical care is provided by NHS staff but Peter's communicator guide is on hand to provide specialist communication and guiding support to make his hospital stay is as comfortable as possible.

Direct payments for local authority services

12.55 As a general rule, direct payments should not be used to pay for local authority-provided services from the 'home' local authority. Where a person wishes to receive care and support from their local authority, it should be easier and less burdensome to provide the service direct to the person. This will also avoid possible conflicts of interest where the local authority is providing the direct payment, but also promoting their services for people to purchase.

12.56 There may be cases where the local authority exercises discretion to provide care and support by receiving a direct payment amount, for example this could be where a person who is using direct payments wants to make a one-off purchase from the local authority such as a place in day care. In these cases, the local authority should take into account the wishes of the person requiring care and support when making a decision. In one off cases such as these, it may be less burdensome to accept the direct payment amount, rather than providing the service and then reducing the personal budget and direct payment accordingly.

Example: Local authority provided service

Graham has a direct payment for the full amount of his personal budget allowance. He decides to use a local authority run day service on an infrequent basis and requests to pay for it with his direct payment so that he retains flexibility about when he attends. The local authority service is able to agree to this request and has systems already in place to take payments as self-funders often use the service. The authority advise Graham that if he wishes to use the day service on a frequent basis (for example, once a week) it would be better to provide the service to him direct, and to reduce the direct payment amount accordingly.

12.57 This does not preclude people from using their direct payment to purchase care and support from a different local authority. For example, a person may live close to authority boundaries and another local authority could provide a particular service that their 'home' authority does not provide.

Direct payments in the form of pre-paid or pre-payment cards

12.58 Many local authorities have been developing the use of pre-paid cards as a mechanism to allow direct payments without the need for a separate bank account, or to ease the financial management of the payment. Whilst the use of such cards can be a useful step from managed services to direct payments, they should not be provided as the only option to take a direct payment The offer of a 'traditional' direct payment paid into a bank account should always be available if this is what the person requests and this is appropriate to meet needs. Consideration should be given to the benefit gained from this arrangement as opposed to receiving the payment via a pre-paid card.

12.59 It is also important that where a pre-paid card system is used, the person is still free to exercise choice and control. For example, there should not be blanket restrictions on cash withdrawals from pre-paid cards which could limit choice and control. The card must not be linked solely to an online market-place that only contains selected providers in which to choose from. Local authorities should therefore give consideration to how they develop card systems that encourage flexibility and innovation, and consider consulting care and support user groups on any proposed changes to direct payment processes.

Harmonisation of direct payments

12.60 In circumstances where it is in the person's interest to combine the plan and budget with another form of state support (such as personal health budgets), and the person agrees that plans should be combined, the local authority should give consideration to whether the person is receiving direct payments from partner organisations, such as the NHS. If so, attempts should be made to harmonise the direct payments so that the person does not have multiple payments each with their own monitoring regime. For example, the local authority could work with the NHS partner to agree on a 'lead organisation' that oversees the overall budget and monitors the direct payments to ensure they are being to meet both health and care needs, while still allowing both bodies to satisfy themselves of their statutory responsibilities.

Reviewing direct payments

12.61 In addition to monitoring direct payments generally to ensure they are being used to meet care and support needs, the Regulations set out that local authorities must also review the making of the direct payment within the first 6 months of making the first payment. This provision is intended to be used for direct payments made under the powers in the Care Act, rather than pre-existing ones.

12.62 This review is intended to be light-touch to ensure that the person is comfortable with using the direct payment, and experiencing no initial issues. It should ideally be incorporated within the initial review of the care and support plan 6-8 weeks after sign-off and include elements such as managing and using the direct payment and a discussion to consider any long-term support arrangements that may be appropriate such as payroll, insurance cover and third party support. Local authorities should ensure that reviewing officers are appropriately trained to review direct payments (for example are familiar with financial procedures and employment laws) This review is not intended to be a full review of the person's care and support plan. However, if this review raises concerns or requires actions that affect the detail recorded in the care plan, then a full review of the plan would need to be carried out.

12.63 If the direct payment recipient is employing people, the local authority should as part of the review, consider checking, if appropriate, to ensure the individual is fulfilling their responsibilities as the employer, in particular that they are submitting PAYE returns to HMRC as well as paying tax and National Insurance deductions made to HMRC.

12.64 The Regulations also set out that following the 6-month review, the local authority must then review the making of the direct payment no later than every 12 months. In practice, after the initial 6-month review period, local authorities may wish to consider aligning the annual review of the direct payment with the general review of the care plan. This will reduce bureaucracy and allow the local authority to review both at the same time.

12.65 Where a direct payment is being allocated to a nominated/authorised person, or where there may be a family carer being paid for administrative support, the review should incorporate all of these parties as well as the person in need of care and support. This will ensure that the local authority receives views from everyone involved in the direct payment, so that it can satisfy itself that there are no initial issues that require resolving.

12.66 The outcome of the review should be written down, and a copy given to all parties. Where there are issues that require resolving, the resolution method should be agreed with all parties involved, as far as is reasonably practicable. Where appropriate, local authorities should advise people of their rights to access the local authority complaints procedure.

Terminating direct payments

12.67 Direct payments should only be terminated as a last resort, or where there is clear and serious contradiction of the Regulations or where the conditions in sections 31 or 32 of the Act are no longer met (except in cases of fluctuating capacity - see sections below). Local authorities should take all reasonable steps to address any situations without the termination of the payment. Effective, but proportionate monitoring processes will help local authorities to spot any potential issues before a termination is necessary.

12.68 If terminating a direct payment, the local authority must ensure there is no gap in the provision of care support. Where a decision has been made to terminate a direct payment, the local authority should conduct a revision of the care and support plan, or support plan, to ensure that the plan is appropriate to meet the needs in question (see Chapter 13 on reviews).

Reasons for discontinuing direct payments

12.69 A person to whom direct payments are made, whether to purchase support for themselves or on behalf of someone else, may decide at any time that they no longer wish to continue receiving direct payments. In these cases, the local authority should ensure there are no outstanding contractual liabilities, and conduct a review of the care plan to consider alternate arrangements to meet needs.

12.70 The Care Act also sets out that a local authority shall cease making direct payments if the person no longer appears to be capable of managing the direct payments or of managing them with whatever support is necessary.

12.71 Direct payments should be discontinued when a person no longer needs the support for which the direct payments are made. This might happen in situations where the direct payments are for short-term packages when leaving care home or hospital. Direct payments for after-care services under section 117 of the Mental Health Act would also cease once the clinical commissioning group and local authority are satisfied that the person concerned is no longer in need of such services.

12.72 There may be circumstances in which the local authority discontinues direct payments temporarily. An example might be when an individual does not require assistance for a short period because their condition improves and they do not require the care and support that the direct payments are intended to secure. The local authority will need to discuss with the person, their carer, and any other person how best to manage this. The person should be allowed to resume responsibility for their own care after the interruption, if that remains their wish, unless there has been a change of circumstances which means that the conditions in the Act and/or Regulations are no longer met. If there is a change of circumstances that affects the care plan/support plan the local authority must revise the plan to ensure that it is still meeting needs (see Chapter 13).

12.73 The local authority might also discontinue payments if the person fails to comply with a condition imposed under regulations to which the direct payments are subject or if for some reason the local authority no longer believes it is appropriate to make the direct payments. For example, the local authority might discontinue the direct payment if it is apparent that they have not been used to achieve the outcomes of the care plan.

12.74 The 2009 Direct Payment regulations set out that direct payments must not be provided under certain conditions, such as where the recipient is placed by the courts under a condition or requirement relating to a drug and/or alcohol dependency. The Care and Support (Direct Payments) Regulations 2014 retain this universal restriction. The groups and conditions remain substantially the same as the 2009 regulations and are set out in the schedule to the 2014 regulations.

12.75 Where direct payments are discontinued as a result of criminal justice legislative provisions, the local authority should make timely arrangements for services to be provided in lieu of the direct payments, to ensure continuity of support.

Discontinuing direct payments in the case of persons with capacity to consent

12.76 Where someone with capacity was receiving direct payments but then loses capacity to consent, the local authority should discontinue direct payments to that person and consider making payments to an authorised person instead. In the interim, the local authority should make alternative arrangements to ensure continuity of support for the person concerned.

12.77 If the local authority believes the loss of capacity to consent to be temporary, it may continue to make payments if there is someone else who is willing to manage payments on the person's behalf. This situation should be treated as strictly temporary and closely monitored to ensure that, once the person has regained capacity, they are able to exercise overall control over the direct payments as before. If the person's loss of capacity to consent becomes prolonged, then the local authority should consider making more formal arrangements for an authorised person to take over receipt of the direct payments on that person's behalf. The local authority should make clear that the arrangement is designed to be temporary, so that the person managing the direct payment does not enter into any long-term contractual arrangements.

Discontinuing direct payments in the case of persons lacking capacity to consent

12.78 Direct payments must be discontinued if the local authority is no longer satisfied for whatever reason that the authorised person is acting in the best interests of the beneficiary, within the meaning of the 2005 Act. The local authority might also wish to discontinue the direct payments if it has sufficient reason to believe that the conditions imposed under regulations on the authorised person are not being met. The authority may wish to consider if someone else can act as an authorised person for the person lacking capacity, or whether it will have to arrange services for them in place of the direct payments.

12.79 Direct payments under section 32 of the Act must be discontinued where the local authority has reason to believe that someone who had lacked capacity to consent to direct payments has now regained that capacity on a long-term or permanent basis. The authority should not terminate direct payments to the authorised person before beginning to make direct payments to the service recipient themselves or to arrange services for them, according to their wishes. If the local authority is satisfied that the regaining of capacity will only be temporary, then it can continue to make direct payments to the authorised person if during the period that the adult has the capacity to make the request and is capable of managing the direct payment, the adult will manage the payments for him or herself.

How to discontinue direct payments

12.80 In all cases, as soon as possible the local authority should discuss with individuals, their carers and any person managing the direct payments if it is considering discontinuing direct payments to them, in order to explore all available options before making the final decision to terminate the direct payments. For example, if ability to manage is an issue, the individual should be given an opportunity to demonstrate that they can continue to manage direct payments, albeit with greater support if appropriate. The local authority should not automatically assume when problems arise that the only solution is to discontinue or end direct payments.

12.81 If the local authority does decide to withdraw direct payments, it will need to conduct a review of the plan and agree alternative care and support provision with the person, their carer and independent advocate if they have one, unless the withdrawal was following a review after which the local authority concluded that the

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The Unseen | Blind and partially sighted report

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'The Unseen: Blind and partially sighted people's experiences of domestic abuse' report explores experiences of physically and sensory impaired people

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According to the Crime Survey for England and Wales (CSEW) year ending March 2020:

an estimated 7.3% of women (1.6 million) and 3.6% of men (757,000) experienced domestic abuse in the last year

women aged 16 to 19 years were more likely to be victims of any domestic abuse in the last year than women aged 25 years and over

adults who were separated or divorced were more likely to have experienced domestic abuse compared with those who were married or civil partnered, cohabiting, single or widowed

Of crimes recorded by the police:

in the year ending March 2020, the victim was female in 74% of domestic abuse-related crimes

between the year ending March 2017 and the year ending March 2019, 77% of victims of domestic homicide were female compared with 13% of victims of non-domestic homicide

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2. Understanding domestic abuse

Domestic abuse is often a hidden crime that is not reported to the police. Therefore, data held by the police can only provide a partial picture of the actual level of domestic abuse experienced. Many cases will not enter the criminal justice process as they are not reported to the police.

One of the strengths of the Crime Survey for England and Wales (CSEW) is that it covers many crimes that are not reported to the police. Domestic abuse measured by the CSEW combines non-sexual abuse, sexual assault and stalking. Information is collected on whether these types of abuse were carried out by a partner (including a former partner) and/or a family member other than a partner (father or mother, step-father or mother or other relative). This definition broadly matches the government definition of domestic violence and abuse which can be found in the Glossary.

The Home Office collects data on the number of domestic abuse-related incidents and the number of domestic abuse-related crimes recorded by the police. Domestic abuse-related incidents include those reports where, after initial investigation, the police have concluded that no notifiable crime was committed ¹. Incidents of domestic abuse that result in a crime being recorded by the police are included in the data on domestic abuse-related crimes.

For more information on how domestic abuse is measured within the CSEW and by the police, see Data sources and quality.

This publication is largely unaffected by the coronavirus (COVID-19) pandemic as it mainly relates to the period prior to the lockdown. Further information on the impact of the pandemic on the CSEW and police recorded crime data can be found in Data sources and quality. Commentary discussing domestic abuse during the coronavirus (COVID-19) pandemic can be found in Domestic abuse during the coronavirus COVID-19 pandemic. Other commentary discussing domestic abuse in England and Wales can be found in the Domestic abuse in England and Wales overview.

Notes for: Understanding domestic abuse

An example of a domestic abuse incident that does not amount to a crime would be two family members having a loud argument, a third party calls the police, the police attend and calm the situation down, but no crime has taken place.
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For the year ending March 2020, the Crime Survey for England and Wales (CSEW) estimated that 1.6 million women and 757,000 men aged 16 to 74 ¹ years experienced domestic abuse in the last year ( Appendix Table 2). This is a prevalence rate of approximately 7 in 100 women and 4 in 100 men (Figure 1).

Women were significantly more likely than men to be victims of each type of abuse, with the exception of sexual assault by a family member where, although higher, the difference was not significant.

The prevalence of domestic abuse experienced by men and women aged 16 to 59 years and 16 to 74 years has not changed significantly in the year ending March 2020, compared with the previous year.

When looking at longer-term trends, the prevalence of domestic abuse experienced by men and women aged 16 to 59 years in the year ending March 2020 is significantly lower than reported in the year ending March 2005 (Figure 2). For example, 4.0% of men and 8.1% of women aged 16 to 59 years had experienced domestic abuse within the last year in the year ending March 2020, compared with 6.5% of men and 11.1% of women in the year ending March 2005.

Data supplied from 28 police forces 2,3 showed the victim was female in just under three-quarters (74%) of domestic abuse-related crimes recorded by the police in the year ending March 2020. This proportion was similar for the majority of offence categories. For domestic abuse-related sexual offences, the proportion of victims that were female was even higher, at 94% (Figure 3).

Over half (53%) of violence against the person offences experienced by female victims were flagged as domestic abuse-related. In contrast, under a quarter (23%) experienced by males were flagged as domestic abuse-related ⁴ ( Appendix Table 12).

Notes for: Sex

1. The age range for respondents eligible for the self-completion module was expanded in April 2017, changing from adults aged 16 to 59 years to adults aged 16 to 74 years. This publication reports primarily on those aged 16 to 74 years, for which we currently have three years of data. Where analysis requires more than the last three years of data we have reported using the 16 to 59 years age range. Data for both 16 to 59 years and 16 to 74 years are provided separately within the Domestic abuse prevalence and victim characteristics - Appendix Tables.

2. Domestic abuse-related crimes have been analysed using data from the Home Office Data Hub. This is an improved record-level data collection system designed to streamline the process by which forces submit data. Migration of forces to the Data Hub is ongoing.

3. Avon and Somerset, Bedfordshire, British Transport Police, Cambridgeshire, Cheshire, Cleveland, Devon and Cornwall, Dorset, Durham, Gloucestershire, Gwent, Hampshire, Hertfordshire, Lancashire, Lincolnshire, Merseyside, Metropolitan Police, Norfolk, North Wales, Northamptonshire, Northumbria, South Wales, Staffordshire, Suffolk, Surrey, Thames Valley, West Yorkshire and Wiltshire.

4. The analysis may not be representative of all forces in England and Wales. The proportion of violence against the person offences that were flagged as domestic abuse-related was 41% for these 28 forces, slightly higher than all forces (35%).

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The Crime Survey for England and Wales (CSEW) year ending March 2020 showed that women aged 16 to 19 years were significantly more likely to be victims of any domestic abuse in the last year than women aged 25 years and over (Figure 4). For men, there were few significant differences by age, however, those aged 55 to 74 years were less likely to be victims of domestic abuse in the last year than those in most other age groups.

Data supplied from 28 police forces 1,2 showed that the proportion of police recorded violence against the person offences flagged as domestic abuse tended to decline by age for females but increase by age for males (Figure 5).

Notes for: Age

1. This is an improved record-level data collection system designed to streamline the process by which forces submit data. Migration of forces to the Data Hub is ongoing.

2. Avon and Somerset, Bedfordshire, British Transport Police, Cambridgeshire, Cheshire, Cleveland, Devon and Cornwall, Dorset, Durham, Gloucestershire, Gwent, Hampshire, Hertfordshire, Lancashire, Lincolnshire, Merseyside, Metropolitan Police, Norfolk, North Wales, Northamptonshire, Northumbria, South Wales, Staffordshire, Suffolk, Surrey, Thames Valley, West Yorkshire and Wiltshire.

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For the year ending March 2020, the Crime Survey of England and Wales showed that those in the Mixed ethnic group were significantly more likely to experience domestic abuse within the last year than those in the Black or Asian ethnic groups (Figure 6).

In the White ethnic group, women were significantly more likely than men to have experienced domestic abuse in the last year (7.7% of women, compared with 3.6% of men; Appendix Table 6).

For partner abuse, those in the White and Mixed ethnic groups were significantly more likely to be victims than those in the Asian ethnic group. For family abuse, those in the White and Mixed ethnic groups were significantly more likely to be victims than those in the Black ethnic group.

Notes for: Ethnicity

Caution should be taken when using these data as some of the categories are based on a small number of responses.
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For the year ending March 2020, the Crime Survey for England and Wales showed that adults aged 16 to 74 years who were separated or divorced were more likely to have experienced domestic abuse than those who were married or civil partnered, cohabiting, single or widowed ¹.

Notes for: Marital status

Marital status may have changed as a result of the abuse.
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For the year ending March 2020, the Crime Survey for England and Wales showed that men and women aged 16 to 74 years with a disability ¹ were more likely to have experienced domestic abuse in the last year than those without (Figure 8).

Figure 8: Those with a disability were more likely to experience domestic abuse than those without

Prevalence of domestic abuse in the last year for adults aged 16 to 74 years, by disability and sex, England and Wales, year ending March 2020

Source: Office for National Statistics - Crime Survey for England and Wales

Notes:

The definition of disability used is consistent with the core definition of disability under the Equality Act 2010. A person is considered to have a disability if they have a long-standing illness, disability or impairment which causes difficulty with day-to-day activities.

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Notes for: Disability

The definition of disability used is consistent with the core definition of disability under the Equality Act 2010. A person is considered to have a disability if they have a long-standing illness, disability or impairment which causes difficulty with day-to-day activities.
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8. Employment status and occupation

For the year ending March 2020, the Crime Survey for England and Wales showed that, of adults aged 16 to 74 years, those who were unemployed were more likely to have experienced domestic abuse within the last year than those who were employed or economically inactive (Figure 9; Appendix Table 6) ¹.

Figure 10 shows that of adults aged 16 to 74 years, for each occupation type except Never worked and long-term unemployed, women were more likely to have experienced domestic abuse than men. This difference was greatest for full-time students, where 10.5% of women had experienced domestic abuse in the last year, compared with 4.8% of men. It is likely that some of the differences seen by occupation type are also linked to age.

Notes for: Employment status and occupation

Employment status and occupation may have changed as a result of the abuse.
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The year ending March 2020 Crime Survey for England and Wales showed that, of men and women aged 16 to 74 years, those who lived in a single-parent household were more likely to have experienced domestic abuse in the last year than those living in a no-children household or a household with other adults and children (Figure 11 and Appendix Table 7) ¹.

Notes for: Household structure

Household structure may have changed as a result of the abuse.
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The year ending March 2020 Crime Survey for England and Wales (CSEW) showed that, of adults aged 16 to 74 years, there were no significant differences in the likelihood of being a victim of domestic abuse between those who live in urban and rural areas ( Appendix Table 7) ¹. This differs from the year ending March 2019 which showed those who lived in urban areas were more likely to have experienced domestic abuse in the last year (6.0%) than those who lived in rural areas (4.2%).

Women were more likely to be victims of domestic abuse within the last year compared with men for all area types ². This pattern was largest for Hard-pressed living, where 9.7% of women were victims of domestic abuse in the last year, compared with 4.7% of men (Figure 12).

Looking at offences recorded by the police, Figure 13 shows that, like the year ending March 2019, the highest rates of both domestic abuse-related crimes and violence against the person domestic abuse-related crimes were recorded in the North East region (with a rate of 19 per 1,000 population and 14 per 1,000 population; respectively). The lowest rates were recorded in London (with a rate of 10 per 1,000 population for all domestic abuse-related crimes and 8 per 1,000 population for violence against the person domestic-abuse related offences). Although this could reflect differences in the rates of domestic abuse across regions, it could also reflect regional differences in the reporting of domestic abuse to the police and how the police subsequently record these offences.

Figure 13: The North East of England had the highest recorded rates of domestic abuse-related offences

Rate of domestic abuse-related crimes recorded by the police, by police force area, English regions and Wales, year ending March 2020

Source: Home Office Data Hub - Police recorded crime

Notes:

1. Police recorded crime data are not designated as National Statistics.

2. Data for Greater Manchester Police are not included because of issues with their data supply following the implementation of new IT systems.

3. The population figures used are the mid-2019 population estimates provided by the Office for National Statistics.

4. Numbers will be affected by the size of the resident population relative to the transient or visiting populations and may therefore over-represent the number of crimes relative to the real population of potential victims.

5. Total rate for England and Wales includes offences recorded by British Transport Police.

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Notes for: Area

1. Area may have changed as a result of the abuse.

2. Information on the different area types can be found in the Output Area section of the 2011 residential-based area classifications.

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Sex

Data from the Home Office Homicide Index for the year ending March 2017 to the year ending March 2019 show that over three-quarters of victims of domestic homicide were female (77% or 274 victims). This contrasts with non-domestic homicides where the majority of victims over the same time period were male (87% or 786 victims).

Table 1 shows that of the 274 female victims of domestic homicide, the suspect ¹ was male in the majority of cases (263; 96%). Of the 83 male victims of domestic homicide, the suspect was female in 39 cases, and male in 44 cases.

Data on the number of domestic homicides by sex can be broken down by police force area but there is considerable volatility in these numbers over time because of the relatively low volumes involved. See Appendix Table 21 for more information.

Age

Analysis of data from the Homicide Index for the year ending March 2017 to the year ending March 2019 showed that the average age of a domestic homicide victim was 46 years. The average age of female domestic homicide victims was 45 years, and the average age of male domestic homicide victims was 48 years ( Appendix Table 22).

Figure 14 shows that the highest proportion of domestic homicide victims fell within the 25- to 34-year age category (22%), whereas the highest proportion of non-domestic homicide victims fell within the 16- to 24-year age category (25%). A larger proportion of domestic homicide victims were aged 65 years and over (18%) compared with non-domestic homicide victims (7%). Similarly, a smaller proportion of domestic homicide victims were aged 16 to 24 years (9%) compared with non-domestic homicide victims (25%).

Relationship to suspect

Table 2 presents data from the Homicide Index between the year ending March 2017 and the year ending March 2019. It shows that, of the 274 female domestic homicide victims, the suspect was a partner or ex-partner in 222 (or 81%) of cases. Of the 83 male domestic homicide victims, the suspect was a partner or ex-partner in 38 (or 46%) of cases.

Notes for: Domestic homicide

1. A suspect in a homicide case is defined as either: a person who has been arrested in respect of an offence initially classified as homicide and charged with homicide, including those who were subsequently convicted or a person who is suspected by the police of having committed the offence but is known to have died or committed suicide prior to arrest or being charged.

2. Family members include parents, sons and / or daughters, siblings or other relatives.

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Controlling or coercive behaviour

Controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape, and regulating their everyday behaviour. Coercive behaviour is a continuing act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish or frighten their victim.

Domestic abuse

Domestic abuse is not limited to physical violence. It can include repeated patterns of abusive behaviour to maintain power and control in a relationship. It includes abuse carried out by a partner, ex-partner or family member. The government's definition of domestic violence and abuse recognises this and defines domestic abuse as:

"Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. It can encompass, but is not limited to, the following types of abuse:

Domestic abuse-related crimes

Incidents of domestic abuse that resulted in a crime being recorded by the police and are included in police recorded crime.

Domestic homicide

An offence of murder, manslaughter or infanticide where the relationship between a victim aged 16 years and over and the perpetrator falls into one of the following categories: spouse, common-law spouse, cohabiting partner, boyfriend or girlfriend, ex-spouse, ex-cohabiting partner or ex-boyfriend or girlfriend, adulterous relationship, son or daughter (including step and adopted relationships), parent (including step and adopted relationships), brother or sister, other relatives.

Non-sexual abuse

Abuse which includes physical force, emotional or financial abuse, or threats to hurt the individual or someone close to them.

Sexual assault

Within the Crime Survey for England and Wales (CSEW) sexual assault includes rape or assault by penetration (including attempts), or indecent exposure or unwanted touching.

Stalking

Defined in the CSEW as two or more incidents (causing distress, fear or alarm) of receiving obscene or threatening unwanted letters, emails, text messages or phone calls, having had obscene or threatening information about them placed on the internet, waiting or loitering around home or workplace, or following or watching.
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14. Data sources and quality

Further quality and methodology information can be found in the Domestic abuse in England and Wales overview.

Crime Survey for England and Wales (CSEW)

The CSEW covers the population living in households in England and Wales; it does not cover the population living in group residences (for example, care homes or student halls of residence) or other institutions. Estimates used within this publication are based on the CSEW self-completion module on domestic abuse, sexual assault and stalking.

The upper age limit for respondents eligible for the self-completion module was increased from 59 years to 74 years in April 2017. This publication reports primarily on those aged 16 to 74 years, for which we currently have three years of data. Where analysis requires more than the last three years of data, we have reported using the 16 to 59 years age range. Data for both age groups are provided separately within the Domestic abuse prevalence and victim characteristics - Appendix Tables.

One of the strengths of the CSEW is that it covers many crimes that are not reported to the police. The CSEW provides reliable estimates of the prevalence of domestic abuse using a consistent methodology that is not affected by changes in recording practices and police activity, or by changes in the propensity of victims to report to the police. While the CSEW provides the best available estimate of trends in the prevalence of domestic abuse, it cannot be used to make any inferences about demands on the police.

All changes reported in this publication are statistically significant at the 5% level unless stated otherwise. Headline CSEW prevalence estimates for domestic abuse included within this publication have previously been published in July 2020 alongside the Crime in England and Wales: year ending March 2020 bulletin.

More information about the CSEW can be found in How domestic abuse data are captured through the criminal justice system.

Measuring domestic abuse within the CSEW

Domestic abuse in the CSEW combines the following different types of abuse:

non-sexual abuse: physical force, emotional or financial abuse, or threats to hurt the respondent or someone close to them

sexual assault: rape or assault by penetration (including attempts), or indecent exposure or unwanted touching

stalking ¹: two or more incidents (causing distress, fear or alarm) of receiving obscene or threatening unwanted letters, emails, text messages or phone calls, having had obscene or threatening information about them placed on the internet, waiting or loitering around home or workplace, or following or watching ²

The CSEW collects information on these types of abuse carried out by a partner (including a former partner) and carried out by a family member other than a partner (father or mother, step-father or mother or other relative).

For the self-completion section of the survey, respondents are handed a tablet computer to use to answer questions. This allows respondents to feel more at ease when answering these sensitive questions, because of increased confidence in the privacy and confidentiality of the survey.

The CSEW estimates do not completely capture the offence of controlling or coercive behaviour in an intimate or family relationship, which was introduced on 29 December 2015. New survey questions to better estimate experiences of this type of abuse are still under development. Details of the research carried out to date can be found in the article on Developing a measure of controlling or coercive behaviour.

Work to improve the data collected to measure domestic abuse from the CSEW is ongoing. Following the suspension of fieldwork due to the coronavirus pandemic there will be no CSEW domestic abuse data available for the year ending March 2021. Further research is underway to consider alternative approaches for future data collection. Inclusivity is an important part of this work and our aim is to capture data from as much of the population as possible.

How the police measure domestic abuse

With the exception of coercive or controlling behaviour, domestic abuse is not a specific criminal offence. Offences that are domestic abuse-related will be recorded under the respective offence that has been committed, for example, assault with injury. However, the police are required to flag when an offence is domestic abuse-related. The Home Office has been collecting information from the police on whether recorded offences are related to domestic abuse since April 2015 ³.

The Home Office collects data on the number of domestic abuse-related incidents and the number of domestic-abuse related crimes. Domestic abuse-related incidents cover reports of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults, aged 16 years and over, who are or have been intimate partners or family members regardless of gender or sexuality. They include those reports where, after initial investigation, the police have concluded that no notifiable crime was committed ⁴.

Not all reported crimes are recorded as an incident first. If it is clear when the incident is reported that an offence has occurred, the police may record the matter as a domestic abuse-related crime immediately without first recording an incident. Incidents of domestic abuse that result in a crime being recorded by the police are included in the data on domestic abuse-related crimes. More information on domestic abuse-related incidents and crimes can be found in the publication How domestic abuse data are captured through the criminal justice system.

Home Office Homicide Index

The Home Office Homicide Index provides data on whether homicides are "domestic". The Homicide Index contains detailed record-level information about each homicide recorded by police in England and Wales. It is continually updated with revised information from the police and the courts and, as such, is a richer source of data than the main recorded crime dataset ⁵.

Homicide Index data are based on the year when the offence was recorded, not when the offence took place or when the case was heard in court. While in the vast majority of cases the offence will be recorded in the same year as it took place, this is not always the case. The data refer to the position as at 5 December 2019, when the Homicide Index database was "frozen" for the purpose of analysis ⁶. The data may change as subsequent court hearings take place or as other information is received.

Analysis on data from the Homicide Index within this publication combines data for a three-year period (year ending March 2017 to year ending March 2019) to account for the year-to-year variability in the volume of homicides.

Impact of the coronavirus (COVID-19) pandemic

This publication is largely unaffected by the coronavirus (COVID-19) pandemic.

CSEW data presented in this publication for the year ending March 2020 are based on interviews conducted between April 2019 and the first two weeks of March 2020. Fieldwork for the year ending March 2020 was suspended two weeks early on Wednesday 18 March 2020 just prior to the lockdown restrictions being announced by the government on 23 March 2020. All estimates from the CSEW for the year ending March 2020 were therefore unaffected by the lockdown restrictions as the data were collected, and relate to, the time prior to this period.

With fieldwork being suspended two weeks earlier than anticipated, the annual sample fell just short of its target of 34,500 adult interviews (the actual figure on which the year to March estimates are based was 33,735 adult interviews). Response rates also fell slightly from a target of 70% to 64%. Overall the impact on the survey estimates has therefore been minimal.

The latest police recorded crime figures presented in this publication relate to crimes recorded by the police during the period April 2019 to the end of March 2020. In response to the coronavirus pandemic, restrictions in England and Wales started from 12 March 2020, with a national lockdown implemented from 23 March 2020. The start of the restrictions and the first eight days of lockdown are therefore captured in police recorded data for the year ending March 2020. We do not expect there to have been a significant impact on crime statistics in February 2020 or earlier before restrictions were applied in the country.

The publication Domestic abuse during the coronavirus (COVID-19) pandemic provides insight into the effects of the coronavirus pandemic on domestic abuse in England and Wales.

Notes for: Data sources and quality

1. As the CSEW questions include stalking by a current partner, it is not consistent with the legal definition of stalking and harassment.

2. From the year ending March 2013 survey onwards, the definition of stalking was changed to meet the criteria of two or more incidents specified in the legal definition.

3. In response to a recommendation in the Her Majesty's Inspectorate of Constabulary (HMIC) 2014 report Everyone's business: Improving the police response to domestic abuse (PDF, 736KB), police forces are asked to "flag" crimes as being domestic abuse-related if the offence meets the government definition of domestic violence and abuse.

4. An example of a domestic abuse incident that does not amount to a crime would be two family members having a loud argument, a third party calls the police, the police attend and calm the situation down, but no crime has taken place.

5. For example, when the police initially record an offence as a homicide it remains classified as such unless the police or courts decide that a lesser offence, or no offence, took place. The offence would be reclassified on the Homicide Index as "no longer recorded" but remain in the main police recorded crime collection as a homicide.

6. The Homicide Index is continually updated with revised information from the police as investigations continue and as cases are heard by the courts. The version used for analysis does not accept updates after it is "frozen" to ensure the data do not change during the analysis period. See Section 3.1 of the User guide to crime statistics for more information.

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Domestic abuse victim characteristics, England and Wales - Office for National Statistics

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Characteristics of victims of domestic abuse based on findings from the Crime Survey for England and Wales and police recorded crime.

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The Hourglass mission is simple: end the harm, abuse and exploitation of older people in the UK. Every year in the UK, 1 million older people experience some form of abuse or neglect. We have nearly 30 years’ experience as Action on Elder Abuse and over that time our work has touched tens of thousands of people, it’s shaped government policy and amplified the issue in national press. That’s why Hourglass is so vital. As the UK’s only charity focused on the abuse and neglect of older people, we staff a free 24/7 helpline. It’s an absolute lifeline for older men, women and their families suffering from the five forms of abuse: physical, psychological, financial, sexual or neglect. For more information about the work we do, the services we provide and the help we offer, visit www.wearehourglass.org.

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Who does Domestic Abuse Affect - Michelle McCarthy discusses abuse and learning disabilities

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Dash risk assessment resources for professionals

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Includes the Dash risk checklist and supporting information, in English and other languages, to help practitioners provide a consistent approach to risk assessment across the UK.

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Domestic Violence Disclosure Scheme (DVDS) Statutory Guidance

April 2023

1. Introduction

Domestic abuse causes untold harm which can have devastating impacts on victims and their families. Tackling it in all its forms is a priority for the Government.

Our landmark Domestic Abuse Act 2021 ('the DA Act') provides further protection to the millions of people who experience domestic abuse, and strengthens measures to bring perpetrators to justice. The DA Act created a statutory definition of domestic abuse, which makes clear that domestic abuse is not just physical violence, but can also be emotional, controlling or coercive behaviour, and economic abuse. As part of this definition, children are explicitly recognised as victims if they see, hear or otherwise experience the effects of abuse. This is supported by statutory guidance which provides clear information on what domestic abuse is. Further information on this can be found in the Domestic Abuse Statutory Guidance.

The Domestic Violence Disclosure Scheme (the "DVDS") - often referred to as "Clare's Law" after the tragic case of Clare Wood, who was murdered by her former partner in Greater Manchester in 2009 - was rolled out across all 43 police forces in England and Wales in March 2014. The DVDS was introduced to set out procedures that could be used by the police to disclose information about previous violent or abusive offending, including emotional abuse, controlling or coercive behaviour, or economic abuse by an individual, where this may help protect their partner or ex-partner, and any relevant children, from violent or abusive offending. A review of the DVDS was conducted in 2015.

The DVDS did not introduce any new legislation. It relies on the police's common law power to disclose information where it is necessary to prevent crime and provides structures and processes in order to exercise those powers. It does not in itself provide or create new legal powers to disclose information, but provides a framework for disclosure in these particular circumstances. It does not have any impact on other lawful disclosures by police in circumstances that fall outside the scope of the DVDS.

Section 77 of the DA Act places the guidance for the DVDS on a statutory footing by imposing a duty on the Home Secretary to issue guidance on the DVDS to chief officers of police. The DA Act does not change the legal basis under which the police can make a disclosure of information, but it does impose a duty on the police to have regard to the guidance when using the DVDS. This in effect means that any police force seeking to deviate from the guidance would need to justify that course of action with good reason - and, in the event of challenge, would need to be able to show they had regard to the duty, but had robust reasons for failing to adhere.

The purpose of this guidance is to support the delivery of DVDS and assist front-line officers and those who work in the area of public protection with its practical application. It builds on the original guidance that was published in 2012, and the policy considerations identified in the 2015 review that widened the scope of the scheme to cover ex-partners. This document provides guidance as to what constitutes being in an "intimate personal" relationship for the purposes of being "personally connected" under the DA Act and section 2.1 of the Domestic Abuse Statutory Guidance. Police should consider each case, and whether the information in question should be disclosed, on its own merits and should consider seeking legal advice on interpretation where individual cases raise particularly complex or unusual issues. The timelines to disclosure have been reduced in this guidance from 35 days to 28 days in order to ensure individuals have quicker access to the information they may need to protect themselves. This guidance has also been updated to incorporate how alternative methods of communication can be used, including through technology and social media to enable disclosures to victims or potential victims.

Any disclosure of information by the police must comply with the common law principles established in case law and be made in accordance with relevant overarching legislation, such as the Rehabilitation of Offenders Act 1974 (the "ROA 1974"), the Human Rights Act 1998 (the "HRA 1998") and the Data Protection Act 2018 (the "DPA 2018").

Data on the use of DVDS is collected by His Majesty's Inspectorate Constabulary and Fire & Rescue Services (HMICFRS). Police forces are to provide this information to help build an accurate picture of how the scheme is being used nationally.

It is important to remember that the purpose of the DVDS is to facilitate disclosure where necessary in order to protect a potential victim, and any relevant children from harm. Each request for information under the DVDS should be considered on its own merits and the police should seek legal advice when necessary before exercising their common law powers of disclosure. There may be occasions when information would not be disclosed in accordance with the DVDS, but disclosure by the police is still possible and consistent with the police's powers to share information and wider legal obligations. In such circumstances, it is likely that legal advice should be sought.

Definitions of terms used in this guidance are at Annex A.

2. What is the Domestic Violence Disclosure Scheme?

The police have common law powers to disclose information, broadly where there is a pressing need to protect people. In this context, these powers form the basis of disclosures under the DVDS, meaning in practice that information can be shared about a person's known history of violence or abuse, normally relating to previous convictions or charges, to members of the public where there is a pressing need for disclosure of the information in order to prevent further crime. The principal aim of the DVDS is to introduce recognised and consistent procedures for the exercise of this power in this context, to enable the police to make a disclosure of information where it would protect a member of the public who may be at risk of harm from domestic abuse. Critical to the success of the scheme is the need for ongoing safety planning throughout the process and the need for a formal risk assessment to be reviewed at every stage in the disclosure process, as this will inform the practical actions necessary to safeguard the potential victim(s), and, any relevant children.

The DVDS recognises two procedures for disclosing information:

For the purpose of this guidance:

Individual A: the person potentially at risk, which includes intimate partners and previous intimate partners. The person potentially at risk might also be the applicant.

Individual B: the person about whom a request is being made.

Individual C: a person who may request information about B on behalf of or out of concern for A, such as a friend or relative, or a professional such as an IDVA. Any disclosure should be made to the person best placed to safeguard A, which may or may not be C.

Third Party: a person to whom a disclosure can be made if deemed by safety planning as the person best placed to safeguard A (e.g. parent, third-sector worker, healthcare professional) and in some instances could be C.

The DVDS provides the following benefits:

The DVDS is focused on disclosure, safety planning and risk management where B is identified as having a conviction, caution, reprimand, or final warning for domestic abuse or related offences; and/or information held about B's behaviour which may not include domestic abuse-related matters but reasonably leads the police and other safeguarding agencies if involved to believe that B poses a risk of harm to A. There is a non-exhaustive list of the relevant offences at Annex B.

What constitutes an intimate personal relationship will differ from case to case. A relationship could be intimate even if it were not a physical, sexual relationship, but was based only on emotional intimacy, or vice versa. While it might depend, in part, on whether those in the relationship considered it to be intimate, it might be intimate even if it were not considered by the parties to be a formal relationship. An intimate personal relationship relates to both those who are current intimate partners and also ex-intimate partners. Ultimately, it would be for a Court to decide what constituted an intimate personal relationship if relevant to a case before it.

It is important to all involved in delivering this scheme that potential or actual victims of domestic abuse, and any relevant children are protected from harm and whilst we know women are more likely to be victims of domestic abuse, this scheme is also applicable to men as the potential person at risk. The Domestic Abuse Statutory Guidance sets out the additional risks and barriers faced by people with certain protected characteristics in making disclosures and accessing support.

By making a request for disclosure, a person will often also be registering their concerns about possible risks to their own safety or that of another individual. Ongoing safety planning is crucial and cases which meet the high-risk threshold should be shared with Multi-Agency Risk Assessment Conference (MARAC) to ensure that any possible risks of harm to A are fully assessed and managed. For further information on MARACs, please refer to chapter 7 of the Domestic Abuse Act 2021 Statutory Guidance. Police forces should also work closely with partners through the Multi-Agency Public Protection Arrangements (MAPPA) where needed and have consideration of other safeguarding issues to ensure that any possible risk of harm.

Police forces are encouraged to work closely with suitable local safeguarding forums or relevant partners (i.e. health, education and social services, including services for children where relevant) and consider the use of additional tools that may be available to manage the risk of harm to ensure that all safeguarding issues that have been identified are addressed. It should be noted that risk is not static, and assessment should be ongoing throughout the process.

Police forces should have regard to the College of Policing Authorised Professional Practice for Partnership working and multi-agency responses (college.police.uk), Victim safety and support (college.police.uk), and Risk and vulnerability (college.police.uk) in regards to information sharing and when considering risk.

The DVDS does not replace arrangements for Disclosure and Barring Service (DBS) checks, the "right of access" by individuals to their personal data (which used to be known as Subject Access Request) or Freedom of Information (FOI) requests. If it is identified at the initial contact that the request is one of these other types of enquiry, then the request should be re-directed to the appropriate type of request. Police legal advice should be sought where necessary.

The DVDS may overlap with and complement other disclosure processes, such as the Child Sex Offender Disclosure Scheme (CSODS, also known as "Sarah's Law"). Consideration should be given to which process is the most appropriate in each case. Forces should aim to make the process of applying to both schemes as easy as possible, and applicants should not be asked to provide their information separately for each scheme. Forces should ensure that, where an application is made for a single scheme (either DVDS or CSODS), they consider a disclosure of information under "Right to Know" for the other scheme without the need for the applicant to make a separate application.

Figure 1: Overview of Domestic Violence Disclosure Scheme entry routes

Entry Route 1: "Right to Ask"

Throughout: Ongoing safety planning, and where necessary full risk assessment

Entry Route 2: "Right to Know"

Throughout: Ongoing safety planning, and where necessary full risk assessment

3. The process

"Right to Ask" entry route

For the purposes of the "right to ask" entry route, the trigger that may lead to a disclosure under this scheme is where a member of the public (A or C) makes a direct application to the police for information about the previous violent or abusive behaviour of B. However, if the applicant is C, they may not necessarily be the one to receive the disclosure - the more appropriate person to receive the disclosure may be A or a third-party who may be the person best placed to safeguard A (e.g. a parent or third sector worker).

An application will be deemed to have been made when either A or C makes contact with the police either in person at a police station, over the telephone or via an online application form and asks for specific information about B's previous violent or abusive offending.

If at any stage during the initial contact the police believe that A or C is alleging a crime (e.g. a specific incidence of a violent or abusive act) rather than asking for information about the previous violent or abusive offending of B, then the police must pursue the crime report under normal criminal investigation procedures, including the completion of a formal risk assessment (Domestic Abuse Stalking and 'Honour' Based Violence (DASH) assessment or the Domestic Abuse Risk Assessment (DARA)). However, it is possible for the procedures leading to a disclosure under this DVDS to run concurrently with a criminal investigation triggered by the allegation of the crime. The police should continue a disclosure application where criminal investigations are in progress.

If A or C makes an enquiry to a partner agency rather than the police, then normal procedures are to be adopted by the partner agency for handling this type of request . Disclosure of information is not a safeguarding tool available only to the police; other agencies may have disclosure powers and should act according to their own safeguarding frameworks. However, if A or C makes it known that they are making an enquiry under the DVDS, then A or C should be referred to the police. A partner agency may facilitate contact with the police if it is appropriate.

However, if the DVDS applicant has already received disclosure via an alternative mechanism (for example via a MAPPA level 2 or 3 meeting) but is requesting further information or clarification about that original disclosure, the applicant should be redirected to the agency or team that was responsible for that original disclosure decision rather than creating a separate enquiry under DVDS. This avoids duplication of processes and ensures a continuity of oversight for the case.

In Person Applications

If A or C visits a police station in person, then they must be allowed the opportunity to make their referral in private, as they may feel uncomfortable doing so in hearing of other members of the public. The applicant should ideally be given the choice of a male or female officer to make their application to and police should ensure that applicants communication needs are met during initial contact and any communication barriers removed. Police should be aware of their legal obligation to make reasonable adjustments to accommodate the accessibility requirements of A or C. All efforts should be made to ensure that A or C are able to fully engage in the process. The officer/police staff designated to assist the applicant must have a comprehensive understanding of domestic abuse and the DVDS. In particular, they must have the knowledge and experience to provide the applicant (A or C) domestic abuse safety advice, where necessary.

After the meeting, if appropriate, the police should give A or C an information pack on DVDS which should give them information on what they can do in the interim to better safeguard themselves (or A if C is the one applying) pending the outcome of the application. The information pack should cater to the applicant A or C's language requirements and should be supplemented with a verbal briefing to explain the contents and next steps. The contents of the information pack are at the discretion of the police, but should as a minimum contain:

It may not be appropriate to provide an information pack to A or C where there is a risk as it could put them or others in danger (for example, possession of the information pack alerting B that A or C have approached the police). If an information pack is not provided, a verbal briefing on the scheme and next steps is still required.

Online Applications

If A or C use an online portal to complete their initial application, the portal must accommodate the accessibility requirements of A or C. As a minimum, the portal should offer a multi-language functionality to enable those with limited comprehension of English to complete the application. The portal must allow A or C to provide information on how and when they are able to be contacted.

Safeguarding information should also be available:

For forces that host applications on their website. They should ensure the portal contains links to both national and local domestic abuse services.

When there is a risk that a perpetrator may be monitoring the applicant's computer use. Online portals should make available information related to safe computer use that can instruct applicants on how to delete internet history or use private browsing. Online portals should also provide a 'quick escape' button that when clicked takes the user to an alternative site without rousing suspicion.

If initial contact is made in person by A or C, it is likely to be received and managed by police control room staff. Where front-line police officers and police community support officers receive a verbal application during the course of their normal policing duties, they should record basic details of A or C and then make a referral to the control room staff to complete the initial contact.

After receiving the initial contact, the details listed at Annex C should be taken from A or C.

Online portals should, as a minimum, capture the details listed in Annex C.

Note: it is vital that, during this initial contact, a safe means of communication is agreed with A or C where the place, means and timing is determined by A or C. This is critical to safeguarding A.

During the initial contact stage, either the police member of staff or online portal should also inform A or C of the following:

the DVDS does not replace procedures that are currently in place for Subject Access or Freedom of Information (FOI) requests and the Disclosure and Barring Service (DBS);

a disclosure will only be made to the person who is in the best position to safeguard A from harm. This will normally be A, unless there is a compelling reason not to disclose to A;

initial checks will be completed as soon as possible and, in any case, within 24 hours to assess whether:

should a decision be made to progress the disclosure application further:

the disclosure application will be referred to the police force's Public Protection Unit, or other appropriately trained staff;

A or C will be required to attend a face-to-face meeting within the next 10 days. In some circumstances, the police may decide to conduct the follow up contact by telephone or by alternative means;

at the face-to-face meeting, A or C will be required to provide proof of their identity and, if the applicant is C, proof of their relationship to A. The police will aim to complete the enquiry within 28 days but there may be extenuating circumstances, such as if it is decided that the case needs to be discussed at a MARAC ahead of disclosure, that increase this timescale. A or C will be informed if this is the case; andx

if any immediate risks to A are identified at any stage, then immediate safeguarding action will be taken, and this will include a robust safety plan delivered by the police and partners. Should a decision be made to disclose information to A, then this will also be accompanied with a robust safety plan tailored to the needs of A, and any relevant children.

Once the initial contact form has been completed by the receiving officer / police staff member, the form must be submitted to the appropriate police team to conduct research on the named party.

Cross border applications

There is a possibility that there will be applications that require the involvement of more than one police force. In these scenarios, it is imperative that there are clear lines of communication between each force to ensure all enquiries are completed.

Coordinating Force - The police force area where A resides will be the force that will be responsible for recording the application, conducting the risk assessment, and coordinating the relevant enquiries. This force will be required to complete the follow up contact.

Responding Force - The force area in which any party other than A lives. These forces will take responsibility for actions in relation to these parties. It will be necessary for the Responding Force to report back to the Coordinating Force with their findings and within agreed timescales.

All police forces and agencies should work in close consultation to consider and address the risk posed in each case. Every effort should be made to reach an agreement between all force areas and agencies involved. In most circumstances, the Coordinating Force will determine whether a disclosure under DVDS is required as they will own the investigation.

Enquiries and referrals (as required) must be made with the agencies in all relevant areas.

Following the initial contact, intelligence checks should be undertaken in line with local police procedures[footnote 10] to build an initial picture on A, B, and where applicable C, and be focused on risk. The minimum standard of checks at this stage are:

Police National Computer (PNC);

Police National Database (PND);

ViSOR - the dangerous persons database[footnote 11] (if the subject has a ViSOR marker on the Police National Computer); and

local intelligence systems.

These checks must not be made in the presence of A or C, to avoid any inappropriate or accidental disclosure to the person at this stage. No disclosure to A or C should be given by the staff member taking the initial contact details at this stage.

Decision on whether to progress Disclosure Application

The information gathered via the initial contact and intelligence checks (either face-to-face or via the online portal) inform both the initial assessment of risk and basis for safety planning for A and the basis of a decision on whether to progress the disclosure application. A form is at Annex D to assist this decision-making process.

In accordance with local police procedures, it will be for the police member of staff to:

make the decision on whether or not to progress the disclosure application following assessment of risk; and

determine how A or C will be contacted to progress the disclosure application, consistent with the preferred method agreed at the initial contact.

The case must be reviewed and supervised by an officer of at least the rank of Sergeant or Police Staff equivalent, who has knowledge of the scheme and is experienced in dealing with safeguarding and the risk management of offenders.

At this stage, a formal report needs to be created on the force case/crime management system (creating a reference number) to ensure there is an auditable record of the application being made.

From the steps outlined above, if it is identified there is an immediate/imminent risk of harm to A, then ACTION MUST BE TAKEN IMMEDIATELY to safeguard those at risk, which includes any relevant children.

If following the initial checks conducted under step 1, the police decide that the disclosure application should continue, the person who made the application (either A or C) must, where possible, be seen either in person or using technology that enables a face-to-face meeting to take place at a time that is safe for them to do so. This is to ensure that the request is:

Whilst it is best practice that the applicant be seen face-to-face either in person or using technology that enables this, in the event this is not possible (for example, for accessibility reasons) a telephone meeting may be used. The most appropriate method for meeting with the applicant determined may be determined on a case-by-case basis. Appropriate safeguarding measures should be put in place regardless of the approach used, including ensuring identity is verified.

Police officers or members of police staff with appropriate expertise, such as a Public Protection Unit, should complete this stage of the process, as they will have experience and knowledge of managing domestic abuse offenders and investigation into domestic abuse incidents. This requisite knowledge and experience in this high-risk area of public protection will inform the relevant questioning and assist in assessing risk.

If at any stage during the initial contact, face-to-face meeting or telephone call the police believe that A or C is alleging a crime (e.g. a specific incidence of a violent or abusive act), then the police must investigate the crime report, complete a formal risk assessment (e.g. DASH or DARA) and follow local procedures. However, it is possible for the procedures leading to a disclosure under this DVDS to run concurrently with the criminal investigation. In these circumstances, police should also provide details of support services to A or C.

Preliminaries

Before progressing enquiries on the application, the police must:

warn A or C that if they wilfully or maliciously provide false information to the police in order to try and obtain a disclosure they are not entitled to, they may risk prosecution, e.g. if they have provided false details in an attempt to make a malicious application, they may be prosecuted under Section 5(2)[footnote 12] of the Criminal Law Act 1967.

warn A or C that if they disclose evidence of an offence whilst registering a concern, it may not be possible to maintain their confidentiality;

warn A or C that information disclosed by the police must only be used for the purpose for which it has been shared i.e. in order to safeguard A, and any relevant children;

assure A or C that the application will be dealt with confidentially. There should however be a caveat placed on this - that confidentiality can only be guaranteed pending the outcome of the process. It should be explained that in the event of a concern arising about B, the police must consider whether representations should be sought from B. Moreover, if a resultant disclosure is to be made to A or C, the police must consider whether B should be informed that a disclosure has been made to A or C. This should not be done, however, without first assessing the full risk to A, and any relevant children, if B were to be contacted, informing A or C of the need to involve B and giving them the opportunity to withdraw the application before B is informed.

ask A or C for proof of identity. Acceptable forms of ID may include:

driving licence;

other trusted form of photo identification;

birth certificate;

household utility bill (electricity, gas, council tax, water);

bank statement.

Recommended practice is that photo identification with confirmation of date of birth and address is required to confirm identity, as per paragraph 35e above. However, it is accepted that some of the vulnerable individuals who may make applications may not have the above forms of identification. In these cases, it may be possible to refer to another statutory agency to confirm the individual's identity (e.g. social worker, health visitor, specialist domestic abuse support worker, teacher).

If initial searches have not resulted in any pertinent information relating to the subject, the police would ask the applicant to provide additional information that will enable the correct identification of the subject. This may include a photo, or a description of identifying features such as tattoos and birthmarks, as well as details of previous addresses and places of work.

A disclosure must not be made to A or C without verification of their identity. However, if this eventuality arises, checks should still be made on the information given about B and, if concerns are identified, then the application should be treated as an intelligence submission which may be used to inform safeguarding measures for A.

Information to be obtained during the meeting

The face-to-face meeting should be approached with an investigative mind-set, not simply to resolve the issue of potential disclosure but to fully consider the wider safeguarding situation of involved parties.

If initial searches have not uncovered any pertinent information relating to B, the applicant should be asked to provide additional information that will enable the correct identification of B. This may include a photo or a description of identifying features such as tattoos and birthmarks, as well as details of previous addresses and places of work.

A or C should be told that the person to whom the disclosure is made will be asked to sign an undertaking that they agree that the information is confidential, and they will not disclose this information further. A warning must be given that legal proceedings could result if this confidentiality is breached and that it is a breach under section 170 of the Data Protection Act 2018 for a person to knowingly or recklessly obtain or disclose personal data without the consent of the data controller (i.e. the agency holding the information that will be disclosed, which in most cases will be the police). This should be explained to the person and their signature obtained on this undertaking. If the person is not willing to sign the undertaking the police will need to consider if disclosure should still take place. The outcome should be recorded and considered in the ongoing safety plan and decision-making process.

After the meeting, the police officer/staff should again provide information as set out in 28 and 29 to A or C on what they can do in the interim to better safeguard A pending the outcome of the application. A or C should be made aware of the estimated length of time for completion of the process.

For consistency, A or C should be provided with a single point of contact with relevant domestic abuse knowledge and experience, who has an awareness of the applicant's case and is able to provide updates on progress as requested.

A or C should be proactively engaged throughout the process.

From the application process through to when a decision whether to disclose or not has been made - victims should be signposted to relevant support services, such as specialist domestic abuse services throughout. Continued support must be provided on an ongoing basis throughout the process.

A template form containing the list of information that is required during this meeting, plus the warnings articulated in paragraph 35, is provided at Annex E.

Ongoing Safety Planning and Risk Assessment

Ongoing safety planning should occur regardless of whether the original applicant is A or C, which may include a formal risk assessment. An officer with appropriate domestic abuse expertise should devise this safety plan. However, in circumstances where those with lesser knowledge of domestic abuse are handling a case, the questions in the DASH assessment or DARA forms should be used as a prompt to garner relevant information and establish any risk A and any relevant children may be in, in order for an appropriate safety plan to be devised. Safety plans should be devised in conjunction with an IDVA, and other safeguarding agencies, where appropriate.

If the applicant appears to be disclosing a domestic abuse incident, the police must conduct a full risk assessment and in cases where children are involved, officers should also consider their force's Operation Encompass[footnote 13] procedures, notifying the child's school to ensure teachers and designated safeguarding leads can provide appropriate support where necessary.

A DARA form, or equivalent evidence-based risk assessment, should be fully completed if it appears that A or C are disclosing an incident of domestic abuse and reference should be made to national police guidance on domestic abuse. Completion of the DARA or equivalent form is vital to establish an appropriate safety plan for A and any relevant children, as per the Family Law Act 1996.

Ongoing safety planning, and DARA or equivalent forms where necessary, should include revisiting the information obtained:

during the initial contact;

at the subsequent face-to-face (in-person/virtual) or telephone follow-up meeting;

from the Police National Computer (PNC);

from the Police National Database (PND);

data from ViSOR; and

from local intelligence systems.

The research and checks should aim to fill any gaps in information and this stage should ensure all available information known to police on the individuals concerned (including on children) with the enquiry has been established.

Checks will also be completed with other agencies where appropriate. This can include:

As part of the ongoing safety planning, the need for a formal risk assessment should be revisited throughout each stage of the DVDS process to ensure A is appropriately safeguarded.

"Right to Know" entry route

Indirect information received by the police

For the purposes of the "right to know" entry route, the trigger which may lead to a disclosure under this scheme is where the police receive indirect information that may impact the safety of A and which has not been conveyed to the police via the "right to ask" process.

Indirect information is likely to be information received by the police from intelligence-gathering arising from the following activities:

an investigation into a criminal act where, as part of that investigation, the police have reason to believe that A may be at risk of harm from B;

information on alleged violent and abusive offending by B that is received from:

Following receipt of the indirect information, intelligence checks should be undertaken by the police to build an initial picture on A and B. The minimum standard of checks at this stage are:

Processes under the National Intelligence Model[footnote 14] should also be used to determine, as far as possible, the veracity of the indirect information received.

To ensure that the safeguarding response is proportionate, consideration should be given to any risks identified and whether A is associated with a serial perpetrator of domestic abuse, defined by the College of Policing as 'someone who has been reported to the police as having committed or threatened domestic abuse against two or more victims. This includes current or former intimate partners and family members'[footnote 15]. The College of Policing have issued principles to assist forces in the identification, assessment and management of serial or potentially dangerous domestic abuse and stalking perpetrators[footnote 16].

The police may make the decision not to progress the disclosure following the completion of intelligence checks. This decision and rationale should be recorded appropriately.

Categorising as a 'concern' or 'no concern' (for both entry routes)

At this point in the Disclosure Scheme process it is envisaged that, from either the "right to ask" or "right to know" entry routes, sufficient information will have been gathered and checked to determine whether a credible risk of harm to A, and any relevant children, in the form of violent or abusive behaviour from B exists. The police should categorise either the disclosure application (under "right to ask") or the indirect information received (under "right to know") as either a "concern" or "no concern" before making the final decision for disclosure.

A "concern" occurs if A, and any relevant children, are at risk of harm from B, based on a balanced profile of B that takes into account the following factors:

B has convictions for an offence related to domestic abuse (see Annex B for list of offences); and/or

B is a serial perpetrator of domestic abuse; and/or

there is intelligence known about the previous violent and abusive offending of B which may include:

cases not proceeded with; and/or

intelligence concerning violent or abusive offences, which do not necessarily need to be related to domestic abuse; and/or

previous concerning behaviour towards previous partners. This may include a pattern of behaviours that indicate that B has stalked or exercised controlling or coercive behaviour over previous partners, including after the end of a relationship;

and/or

there is concerning behaviour by B demonstrated towards A. This may include a pattern of behaviours that indicate that B is stalking or exercising controlling or coercive behaviour over A.

The ROA 1974 provides that, in most circumstances, convictions become 'spent' after a number of years and do not need to be disclosed. However, the ROA 1974 does not prohibit the disclosure of spent convictions. Police officers retain discretion in the course of their duties as to whether or not to disclose spent convictions under the DVDS. Officers should take into account the age of the conviction during the decision-making process. Where the disclosure of a conviction is in the course of their duties, the police will not be liable to prosecution under the ROA 1974. Any disclosure made by the police under the DVDS also needs to be necessary, reasonable and proportionate, and in accordance with other relevant over-arching primary legislation; for example, the HRA 1998 and the DPA 2018. Police should consider seeking legal advice where they are considering disclosure.

If a "concern" occurs, the police must consider if representations should be sought from B to ensure that the police have all the necessary information to make a decision in relation to disclosure. As part of this consideration, the police must consider whether there are good reasons not to seek a representation, such as if seeking the representation might put A at risk or the need to disclose information in an emergency. If it is determined that representations from B need to be sought, the police must inform A or C of the need to involve B, giving them the opportunity to withdraw the application.

A "no concern" applies where B has:

This stage of the process should be reached no later than 10 days from the face-to-face meeting (under "right to ask") or from receipt of the indirect information (under "right to know").

A decision to categorise a case as a "concern" or "no concern" must be reviewed and supervised by an officer of at least the rank of Sergeant or Police Staff equivalent, who has knowledge of the scheme and is experienced in dealing with safeguarding and the risk management of offenders.

Once the police have determined whether the initial trigger can be categorised as a "concern" or "no concern", best practice is that cases should be referred to a multi-agency panel for any additional input or considerations about whether information should be disclosed and next steps for safeguarding A and any relevant children. If a multi-agency panel is used to help inform next steps, the final decision on whether disclosure should remain with the police.

If it is identified there is an immediate/imminent risk of harm to A, then ACTION MUST TAKEN IMMEDIATELY BY THE POLICE to safeguard those at risk.

Multi-Agency Panels

The multi-agency panels, where used to help inform disclosure or plan next steps for safeguarding, may consist of some or all of the following agencies:

Police

Probation Service

Prison Service

Health

Education

Local authority, including adult and children's social care, housing, etc

A representative from a domestic abuse victim support specialist service (including male specific services if relevant)

Perpetrator interventions

The minimum number of bodies constituting the multi-agency panel should ideally be no less than three, and consist of the police, probation service and a representative from a domestic abuse service.

Applications which are considered high risk cases should be referred to a MARAC for information sharing and safeguarding.

Principles for the police to consider when making a decision whether to disclose

There are three principles that the police should take into account on the decision to disclose information that protects A. Information shared at multi-agency panels where used may inform considerations around disclosure where relevant, but the final decision on whether or not a disclosure will be made rests with the police.

Principle 1: Three-stage disclosure test

The police have the common law power to disclose information about an individual where it is necessary to do so to protect another individual from harm. The following three-stage test should be satisfied before a decision to disclose is made:

it is reasonable to conclude that such disclosure is necessary to protect A, and any relevant children, from being the victim of a crime;

there is a need for such disclosure, which considers that there is a:

interfering with the rights of B, including B's rights under Article 8 of the European Convention of Human Rights to have information about their previous convictions kept confidential, is necessary and proportionate for the prevention of crime. This involves balancing the consequences for B if their details are disclosed against the nature and extent of the risks that B poses to A. This stage of the test involves considering:

whether B should be asked if they wish to make representations, so as to ensure that the police have all the necessary information at their disposal to conduct the balancing exercise, however, such a decision must be based on an assessment of risk of harm to A if B were to be informed, and should not be done if there is any risk of harm to A. A should also be informed of the need to involved B and given the option to withdraw their application on this basis.

the extent of the information which needs to be disclosed - e.g. it may not be necessary to tell the applicant the precise details of the offence for the applicant to take steps to protect A.

There may be concerns that relate to B's current behaviour towards A within the disclosure application e.g. abusive or threatening behaviour. In this case, even though there is no recorded information held by the police or other agencies to disclose to the applicant, the applicant may still be contacted to talk about concerns over B's current behaviour. This discussion should cover steps the applicant should take in relation to these concerns to safeguard A from the risk of harm posed by B. The police, with input from domestic abuse specialist organisations or an IDVA, or the multi-agency panel if used, will consider what safeguarding measures could be introduced to support A in the short, medium and long term, and determine the roles and responsibility of each agency to ensure that the safety plan remains victim-centred. This could include the application of a protection order, for example a Stalking Protection Order or a Domestic Violence Protection Order, or referral to a MARAC.

Principle 2: Data Protection Act 2018 and the UK General Data Protection Regulation.

Information considered for disclosure may include sensitive, personal data (such as information about an individual's previous convictions) and therefore the police must be satisfied that disclosure is in accordance with Data Protection Act 2018 which sets out the framework for data protection law in the UK.[footnote 17]

It sits alongside and supplements the UK General Data Protection Regulation (GDPR) - for example by providing exemptions. It also sets out separate data protection rules for law enforcement authorities, extends data protection to some other areas such as national security and defence, and sets out the Information Commissioner's functions and powers.

Information and guidance on applying the Data Protection Act 2018 and the UK GDPR can be found at the Information Commissioner's Office website at https://ico.org.uk.

Principle 3: Informing B of the disclosure

Consideration must also be given to whether B should be told that information about him/her may be disclosed to the applicant. Such a decision must be based on an assessment of risk of harm to A, if B were to be informed. Due consideration must be given on whether seeking representations from B would have potential to escalate the risk of harm to A. If this were to be the case, no representations must be sought from B. A should also be given the opportunity to withdraw their application before B is informed of anything.

In the event that B is to be informed that a disclosure is to be made to the applicant, then B should be informed in person and given information about the DVDS and the implications for B. This also provides agencies with an opportunity to sign-post B to relevant support services to allow B to address their offending behaviour.

Annex H contains a template checklist for the police to refer to, which summarises the three principles articulated in this section of the guidance.

A decision to categorise a disclose or not to disclose must be reviewed and supervised by an officer of at least the rank of Sergeant or Police Staff equivalent, who has knowledge of the scheme and is experienced in dealing with safeguarding and the risk management of offenders.

Decision made to disclose information

If the decision is made to disclose information because it is judged that there is a risk of harm to A that warrants a disclosure, then the following should be considered:

what will be disclosed?

The police will need to consider the specific wording of a disclosure that contains sufficient information to allow A to make an informed choice with regard to their relationship or contact with B. Sufficient information can include the circumstances in which a previous offence was committed. The disclosure must be accompanied by a robust safety plan tailored to the needs of A and any relevant children and based on all relevant information, which identifies the service provision and the relevant partners or agencies who will deliver on-going support to A.

who should the disclosure be made to?

The disclosure should be provided to the person(s) best placed to safeguard A. Whilst it is envisaged that the majority of disclosures will be made to A, it may not be appropriate to do so in all instances, for example where there are concerns about A's mental capacity to understand the information being disclosed. The judgement of who to disclose to will be determined based on the information gathered as part of the DVDS process and subsequent risk assessments.

how should the disclosure be made?

The disclosure will be delivered by the police, however they should consider whether there are other agencies that should also be involved in the delivery or be present (e.g. IDVA). It is recommended that the disclosure should be made in person.

The use of technology that enables a face-to-face meetings or telephone disclosures can be utilised under the "right to ask" applications if determined to be the best approach for a case (e.g. where there are issues with accessibility) and only where identity can be confirmed. The risk of technology facilitated abuse should be considered when deciding how to make a disclosure.

For the "right to know" route it is strongly recommended that a face-to-face approach to disclosure is followed, as this information may be unexpected to A.

In line with safeguarding procedures, it is essential that the disclosure takes place at a safe time and location to meet the specific needs of A.

If a disclosure is made, then the person receiving the disclosure must receive the following information:

If the person is not willing or unable to sign the undertaking or provide verbal confirmation, the police will need to consider if disclosure should still take place and legal advice should be sought where necessary. The outcome should be recorded and considered as part of assessments of risk, decision-making process and safety planning.

At no time will written correspondence concerning the specifics of the disclosure consideration be sent out or left with the applicant in relation to the disclosure of information. There would be a potential risk to intelligence sources, victims and perpetrators should such written information get into the wrong hands. Annex H provides a template form which may be used to convey a disclosure. What the applicant is told should be recorded verbatim on this form, signed, and then retained by the police. It must not, under any circumstances, be given to the applicant.

The person to whom the disclosure is made should, if appropriate, be given information to empower them to safeguard A and any relevant children in the future.

Disclosures when the applicant is not the recipient

In some situations, the applicant to the scheme may not be the person who is best placed to safeguard A. In such situations, the applicant would not receive the disclosure or be informed if a disclosure has been or will be made. The applicant should be informed that there is no information to disclose to them and be provided with guidance to stay vigilant and report any future concerns.

Consideration should be given to the privacy of applicants who are not the recipient of the disclosure. Where the recipient of the disclosure is not the person who applied to the scheme, the recipient should not routinely be informed who made the application or what information the applicant provided regarding the subject.

Decision made not to disclose information

If a decision is made not to disclose information because it is judged that there is a no significant risk of harm to A that warrants a disclosure, then these actions should be followed:

if the decision not to disclose has been made following the "right to know" entry point, then the decision not to disclose plus the rationale should be recorded. Recording the decision in this way may inform future disclosure considerations made on B.

if the decision not to disclose has been made following the "right to ask" entry point, then the following steps should be taken:

it is highly recommended that the applicant should be told in person or, via a safe method of communication if appropriate, as any written correspondence or a home visit has the potential to put A at risk. The applicant should be told that there is no information to disclose given the information/details provided by the applicant and the result of checks made on these details.

However, it is important that the applicant is made aware of the limitations of intelligence gathering. They should be informed that the absence or lack of information does not mean that there is nothing to disclose or any concerns are unfounded. The applicant should be told that the absence or lack of information to disclose does not mean that there is no risk of harm to A, and the applicant should remain vigilant and report any future concerns.

Annex I provides a template form which may be used to convey suitable wording.

The applicant should be given an information pack to help safeguard A in the future, but at no time should the information pack contain written correspondence concerning the specifics of the disclosure consideration. There could be a potential risk of harm to A should such written information be obtained by a third party and/or B.

The applicant should also be made aware of available specialist domestic abuse services, including "by and for" services where applicable, and should be provided with the opportunity to be referred to these services.

B will not be notified where no disclosure is made to the applicant.

Managing the perpetrator

Regardless of whether a decision is made to disclose information to safeguard A, the police or local multi-agency forum should also consider whether B should be referred to an appropriate local framework for managing perpetrators. Such a decision will be made based on the risk of harm posed by B's offending behaviour to the local community, and options may include referral either to the local:

The local multi-agency forum should use the risk-assessment criteria in force by local MAPPA and IOM schemes to determine the appropriate scheme to which B might be referred.

Maintaining a record of the Disclosure Scheme

At the closure of every case (whatever the outcome and at any stage in the process), a final report must be submitted onto police and local agency intelligence systems to record the request/information received, outcomes and details of all parties involved. Records should also be kept of protected characteristics such as sex, ethnicity and disability, and whether or not the requester is a third party, for data collection purposes.

This should serve as a piece of valuable intelligence, which will be retrievable to all police forces via the PND system. It would allow any patterns where B has many disclosure requests made against them to be identified to help safeguard A.

Any decisions made as a result of the DVDS must be recorded fully and in a format that would stand scrutiny of any formal review including judicial review or claims of negligence.

It is also crucial that any relevant information coming to light as part of this process is shared as appropriate with all relevant agencies, in accordance with the principles of information sharing and disclosure as articulated in this guidance document.

Table 1 - Suggested Maximum Timescales

The maximum timescale for a DVDS investigation to be completed is 28 days from start to finish, unless extenuating circumstances exist which mean an extension is required and justified.

Stage

Timescales for Right to Ask

Timescales for Right to Know

Throughout the disclosure process - both routes

Contact made

Direct information received

Indirect information received and intelligence checks made - completed within 10 days from indirect information received

Ongoing safety planning, and where necessary, full risk assessment

Step 1 - Initial Contact checks

Completed within 24 hours from initial contact made

Ongoing safety planning, and where necessary, full risk assessment

Step 2 - face-to-face meeting

Completed within 10 days from Initial Contact checks

Ongoing safety planning, and where necessary, full risk assessment

Categorising as a "concern" or "no concern"

Completed within 10 days from face-to-face meeting

Completed within 10 days from intelligence checks

Ongoing safety planning, and where necessary, full risk assessment

Disclosure of information

By day 28

By day 28

Ongoing safety planning, and where necessary, full risk assessment

Annex A - Definitions

The following definitions are used for the purposes of this guidance document:

applicant - means the person making the application under "right to ask".

application - means those enquiries under "right to ask" that go on to be processed as formal domestic abuse disclosure applications, excluding applications that are not 'true' disclosure scheme applications i.e. vetting and barring, intelligence-giving opportunities.

children/ any relevant children - as defined by the Family Law Act 1996

domestic abuse - defined under Section 1 of the Domestic Abuse Act 2021 as any incident or pattern of incidents of abuse between persons aged 16 years or over who are "personally connected" to each other. This goes well beyond intimate partner violence (IPV) in the home. Domestic abuse can be any of the following behaviours, and they can take place in any setting: psychological or sexual abuse; violent or threatening behaviour; controlling or coercive behaviour; economic abuse; psychological, emotional, or other abuse. This definition also recognises children as victims of domestic abuse in their own right when they see, hear, or experience the effects of it.

disclosure - means the act of disclosing specific information to A or C about B's convictions for violent and relevant non-violent offences and any other relevant information deemed necessary and proportionate to protect A from harm.

harm - includes any hurt calculated to interfere with the health or comfort of the victim; such hurt need not be permanent but must be more than transient and trifling.

indirect information - means that, under "right to know", the police come into possession of information that may impact the safety of A and which has not been conveyed to the police via the "right to ask" process.

Individual A: the person potentially at risk. This might also be the requestor.

Individual B: the potential perpetrator.

Individual C: a person who may request information about 'B' on behalf of or out of concern for 'A', such a friend or relative, or a professional such as an IDVA. They may not, however, be the person who then receives the disclosure.

information-sharing - sharing of information between relevant agencies (both statutory and non-statutory).

intimate personal relationship - means a relationship between two people, regardless of gender, which may be reasonably characterised as being physically and/or emotionally intimate. The police should consider this on a case-by-case basis and should consider seeking legal advice when considering disclosure on whether the requirement for an intimate personal relationship has been met.

multi-agency forum - means a forum consisting of safeguarding agencies, police, probation and third sector that is constituted to advise whether disclosure would be appropriate in a particular case. Ideally, this should be the Multi-agency Risk Assessment Conference (MARAC) or, where this is not possible, another appropriate forum that local needs determine, and which can deliver the intended outcomes of the Domestic Violence Disclosure Scheme. Ultimately, it will be the police, as owners of the information, who will make the final decision as to whether to disclose the information.

MAPPA - Multi-Agency Public Protection Arrangements are in place to ensure the successful management of violent and sexual offenders.

personally connected - section 2 of the Domestic Abuse Act 2021 defines as two people who are or have been married, are in civil partners or have been, have agreed to marry one another (whether or not the agreement has been terminated); have entered into a civil partnership agreement (whether or not the agreement has been terminated); are, or have been, in an intimate personal relationship with each other or if they are relatives.

relevant non-violent offence - means an offence that does not involve the use of any force or injury to another person but that may cause fear or distress or still put the victim at risk, for example through threat of harm, controlling or coercive behaviour or stalking.

serial perpetrator - for the purposes of this disclosure scheme, the definition articulated by the Crown Prosecution Service is used:

where a suspect has committed an act of domestic violence against two or more different victims or complainants they should be considered a 'serial perpetrator'.

third party: a person whom a disclosure can be made to if deemed by the risk assessment as the person best placed to safeguard 'A' (e.g., parent, third-sector worker) and in some instances could be 'C'.

violent offence - means an offence which leads to, or is intended or likely to lead to, a person's death or physical injury to a person.

Annex B of this guidance document gives a non-exhaustive list of offences that may be disclosed under the Domestic Violence Disclosure Scheme.

Annex B - Non-exhaustive list of offences where convictions and/or allegations may be disclosed under the Domestic Violence Disclosure Scheme

The following list sets out the offences where a conviction or allegation may be disclosed under the Domestic Violence Disclosure Scheme. The list is non-exhaustive and is intended to act as a guide to the types of offences that may be disclosed.

Controlling or coercive behaviour

Battery

Common assault

Murder

Manslaughter

Kidnapping

False imprisonment

Under the Offences against the Person Act 1861

section 4 (soliciting murder)

section 16 (threats to kill)

section 18 (wounding with intent to cause grievous bodily harm)

section 20 (malicious wounding)

section 21 (attempting to choke, suffocate or strangle in order to commit or assist in committing an indictable offence)

section 23 (maliciously administering poison etc. so as to endanger life or inflict grievous bodily harm)

section 28 (causing bodily injury by explosives)

section 29 (using explosives etc. with intent to do grievous bodily harm)

section 30 (placing explosives with intent to do bodily injury)

section 31 (setting spring guns etc. with intent to do grievous bodily harm)

section 35 (injuring persons by furious driving)

section 38 (assault with intent to resist arrest)

section 47 (assault occasioning actual bodily harm)

Under the Public Order Act 1986

section 1 (riot)

section 2 (violent disorder)

section 3 (affray)

section 4 (fear or provocation of violence)

section 4A (intentional harassment, alarm or distress)

section 5 (harassment, alarm or distress)

Under the Explosive Substances Act 1883

section 2 (causing explosion likely to endanger life or property)

section 3 (attempt to cause explosion, or making or keeping explosive with intent to endanger life or property)

Under the Children and Young Persons Act 1933

section 1 (cruelty to children)

Under the Firearms Act 1968

section 16 (possession of firearm with intent to endanger life)

section 16A (possession of firearm with intent to cause fear of violence)

Under the Theft Act 1968

section 7 (theft)

section 8 (robbery or assault with intent to rob)

section 9 (burglary with intent to inflict grievous bodily harm)

section 10 (aggravated burglary)

section 21 (blackmail)

Under the Criminal Damage Act 1971

section 1 (criminal damage including arson)

Under the Criminal Law Act 1977

section 6 (violence for securing entry)

Under the Criminal Attempts Act 1981

section 1 (attempting to commit an offence)

Under the Child Abduction Act 1984

section 1 (offence of abduction of child by parent etc.)

section 2 (offence of abduction of child by other persons)

Under the Criminal Justice and Public Order Act 1994

section 51 (intimidation, etc., of witnesses, jurors and others)

Under the Crime and Disorder Act 1998

section 29 (racially or religiously aggravated assaults)

section 30 (racially or religiously aggravated criminal damage)

section 31 (racially or religiously aggravated public order offences)

section 31 (racially or religiously aggravated harassment)

Under the Domestic Violence, Crime and Victims Act 2004

section 5 (causing or allowing the death of a child or vulnerable adult)

Under the Sexual Offences Act 2003

section 1 (rape)

section 2 (assault by penetration)

section 3 (sexual assault)

section 4 (causing a person to engage in sexual activity without consent)

section 5 (rape of a child under 13)

section 6 (assault of a child under 13 by penetration)

section 7 (sexual assault of a child under 13)

section 8 (causing or inciting a child under 13 to engage in sexual activity)

section 9 (sexual activity with a child)

section 10 (causing or inciting a child to engage in sexual activity)

section 11 (engaging in sexual activity in the presence of a child)

Under the Asylum and Immigration (Treatment of Claimants etc.) Act 2004

section 4 (trafficking people for exploitation)

Under the Modern Slavery Act 2015

section 1 (slavery, servitude, forced or compulsory labour)

Under the Serious Crime Act

section 76 (controlling or coercive behaviour)

Protection from Harassment Act 1997

section 2 (offence of harassment)

section 2A (offence of stalking)

section 4 (putting people in fear of violence)

section 4A (stalking involving fear of violence or serious alarm or distress)

(Unique reference number to be allocated to each enquiry and made reference to throughout the process)

Officer recording:

Date:

Means of contact:

Details of Applicant

Name (including any other names used, i.e. maiden):

DOB:

Place of birth:

Address:

Ethnic origin:

Gender:

Preferred language:

Third party applicant (yes/no):

Time:

Day:

Method:

Details of Subject

Name (including any other names used):

DOB:

Place of birth:

Gender:

Ethnic origin:

Address including previous address(es):

Place of work/employment:

Any additional information (including on disability or any known additional or complex needs):

Details of Person at Risk (if not applicant)

Name (including any other names used):

DOB:

Place of birth:

Gender:

Ethnic origin:

Address including previous address(es):

Place of work/employment:

Any additional information (including on disability or any known or complex needs):

Details of Children

Name (including any other names used):

Address:

Ages (approximate if necessary):

Any additional information:

Relationship to subject and person at risk:

Relationship

Nature of relationship between subject and person at risk:

How would you describe the relationship:

Length of relationship:

Concerns

What concerns have they in regard to the person at risk?:

Elements of Risk

Does the subject know that the enquiry has been made?:

Concerns about subject knowing that you are making this application:

Information to be Read to Applicant

Does not replace existing procedures

Disclosure will only be given to person at risk and/or person who is in a position to safeguard

24-hour timescale for checks to eliminate immediate risk

Face-to-face meeting follows within 10 days

Proof of ID required

Enquiry will be completed within 28 days

Do you consider yourself to be at risk from the subject?

Caveat: The person completing the forms has responsibility to complete all relevant checks, no disclosure at this stage (to be completed within 24 hours)

If a crime is reported there is a duty to respond and conduct an investigation in line with normal operating procedures

(the Disclosure process will run alongside any investigation that is ongoing)

Annex D - Template for Initial Checks/Risk Assessment

This is the minimum standard of checks that are required at this initial contact stage. Any further checks that Forces feel are necessary are at their discretion. How these checks are to be recorded is to be decided by individual Forces.

Checks Completed on Subject

Officer recording:

Date:

PNC:

PND:

Intelligence check:

Risk assessment tool:

Checks Completed on Applicant (if not Person at Risk)

PNC:

Intelligence:

Checks Completed on Person at Risk

PNC:

Intelligence:

DARA/ DASH:

If a crime is reported there is a duty to respond and conduct an investigation in line with normal operating procedures

(the Disclosure process will run alongside any investigation that is on-going)

Risk Assessment

Yes (immediate action to be taken to safeguard those at risk in line with standard procedures and record action below):

OR

No (any relevant details to be recorded in making this decision):

Officer/Staff completing:

Date:

Additional Information

Brief summary of information known at this stage, outcome of checks done and comments by Supervisors in support of decision made:

Minimum standard of information to be obtained and checks to be completed at the Face-to-Face stage

(Unique reference number to be allocated to each enquiry and reference to be made throughout the process)

Officer recording:

Date:

Location:

Persons' present:

Details of Applicant

Name:

DOB:

Place of birth:

Address:

Ethnic origin:

Verification of Identity (photographic identification required)

Passport number:

Driving licence number:

Birth certificate:

Other:

Further Details

Reason for contact and application?:

Describe history of relationship:

Consent

Warning about providing false information

Warning of further disclosing information received

Name:

Signature:

Date:

Officer recording:

Date:

Caveat: It is the responsibility of the person completing the form to conduct all relevant checks, no disclosure at this stage (although it seems unnecessary to repeat person's details and checks, it might be good practice to facilitate a tick box or guidance prompt to ensure none of the persons have come to notice since the initial contact check. At the discretion of Forces, further checks in regard to international enquiries could be warranted, CETS, etc).

Additional PND checks to be completed at this stage and consideration to the following:

Checks Completed on Subject

Officer recording:

Date:

PNC:

PND:

Intelligence check:

DASH:

Checks Completed on Applicant (if not Person at Risk)

PNC:

Intelligence:

Checks Completed on Person at Risk

PNC:

Intelligence:

DARA/DASH:

Are any immediate or imminent risk of harm factors identified at this stage? (Action to safeguard to be taken at this stage as necessary)

Annex F - Information-sharing principles

The successful implementation of the Domestic Violence Disclosure Scheme is dependent on appropriate information-sharing between agencies and disclosure to a third party for the purpose of protecting the public. For the sake of clarity, information-sharing is the sharing of information between relevant agencies (both statutory and non-statutory).

Agencies responsible for sharing and disclosing information under the Domestic Violence Disclosure Scheme should familiarise themselves with the Information Commissioner's Office (ICO) Data Sharing Code of Practice and ICO code on the DPA exemption in section 29 of the DPA re crime prevention, both available from the ICO website at https://ico.org.uk. For those forces operating in Wales, the Wales Accord for the Sharing of Personal Information (WASP), found at http://www.waspi.org/home, can also be referred to.

The purpose of sharing information in this context is to enable the relevant agencies (both statutory and non-statutory) to work more effectively together in assessing risks and considering how to manage them. This points towards sharing all of the available information that is relevant, so that nothing is overlooked, and public protection is not compromised. However, there are certain principles that must be taken into account when considering whether to share information.

At all times, the ability to both share and disclose information must be considered on a case-by-case basis to determine whether the sharing of information is lawful, i.e. necessary and proportionate.

Information that is shared under the Domestic Violence Disclosure Scheme remains the responsibility of the agency that holds it. For example, the Probation Service will hold information regarding their statutory supervision of a perpetrator, and the police hold information regarding their separate management of a perpetrator.

Information-sharing must adhere to common law and legislation. Whilst ordinarily non-statutory agencies are bound by a common law duty of confidence (which requires that information provided should not be used or disclosed further in an identifiable form except as originally understood by the provider, or with his or her subsequent permission), case law has established a defence to breach of confidence where the disclosure is in the public interest. The prevention, detection, investigation and punishment of serious crime and the prevention of abuse or serious harm may well amount to a sufficiently strong public interest to override the duty of confidence.

The information-sharing must comply with the data protection principles set out in the DPA and reproduced in the ICO Code of Practice. Among other things, this means that the information shared must be accurate and up to date; it must be stored securely; and it must not be retained for any longer than necessary. There are some differences between the principles in the respective pieces of legislation: the UK GDPR and Part 2 of the DPA 2018 for general data processing; and Part 3 of the DPA 2018 for law enforcement processing. You should refer to the detailed guidance on the ICO website[footnote 18].

In normal circumstances, data shall be handled only with the data subject's consent, transparently, and only in ways which the data subject would reasonably expect. However, section 29(1) of the DPA provides an important exemption to the requirement to comply with the data principle 1 if the sharing of personal data is necessary for the prevention and detection of crime (guidance on section 29 is available on the ICO website[footnote 19]. Under the DVDS, it will be appropriate for information to be shared under this exemption and without the consent of the data subject (B) if it can be shown that such sharing is necessary for the prevention of a crime against A. However, in the case of personal data, a condition from Schedule 2 must be met and a condition from Schedule 2 and one from Schedule 3 must be met in the case of sensitive personal data. It is also important to note that such information shared must comply with the remaining data protection principles. Use of the exemption should be considered on a case-by-case basis.

Data sharing must also comply with the Human Rights Act 1998 (HRA). Article 8 of the ECHR, given domestic effect by the HRA, provides a right to respect for private and family life, home and correspondence. Any interference with this right by a public authority (such as a criminal justice agency) must be "necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".

The sharing of personal information about a potential perpetrator may be an interference with a person's right to a private and family life. To comply with Article 8 of the European Convention on Human Rights, any such interference must be shown to be necessary and proportionate in the pursuit of a legitimate aim, such as public safety or the prevention of disorder or crime.

In human rights law, the concept of proportionality means doing no more than is necessary in pursuit of a legitimate aim. The six law enforcement data protection principles under Part 3, Chapter 2 of the DPA 2018 are the main responsibilities you should follow when processing personal data for law enforcement purposes. The third principle requires that the personal data you are processing is adequate, relevant and not excessive. This means the data must be limited to what is necessary for the purpose(s) you are processing it.

Annex G - Template checklist on disclosure decision-making process

Section 1 - Questions for Consideration

Is B known for domestic abuse related convictions?

Where B is known for domestic abuse related convictions, does the Disclosure Application highlight safeguarding concerns in view of the nature of this previous history?

Is B known for other offences relating to safeguarding (to include intelligence, breach of civil orders, harassment or injunctions, etc, Police National Database or information obtained by local checks)?

If B is known for offences/intelligence/information relevant to safeguarding and they are in an intimate relationship, give consideration to 'concerns' outcome route.

Reconsider if there is an immediate/imminent risk of harm identified and, if so, take immediate action to safeguard person(s) at risk.

Were concerns raised as a reason for making the application?

Was the behaviour of the subject/applicant's observations raised as a reason for making the application?

With all the above questions, consideration must be given as to why.

Reconsider if there is an immediate/imminent risk of harm identified and, if so, take immediate action to safeguard person(s) at risk.

Section 3 - Further Information

Is there any other information, not covered in the above questions, that highlights safeguarding concerns?

If yes, give full details and consideration to 'concerns' outcome route.

CONCERNS: Yes / No (delete as applicable)

Rationale and justification for chosen outcome route (free text):

Officer/Agencies represented and completed:

DECISION: Disclosure / Non-Disclosure (delete as applicable)

CONSIDERATION GIVEN TO INVITE B TO MAKE REPRESENTATIONS:

Yes / No (delete as applicable)

Rationale and justification for chosen outcome route (free text):

Officer/Agencies represented and completed:

CONSIDERATION GIVEN TO INFORM B OF DISCLOSURE:

Yes / No (delete as applicable)

Rationale and justification for chosen outcome route (free text):

Officer/Agencies represented and completed:

CONSIDERATION GIVEN TO REFER B TO APPROPRIATE LOCAL FRAMEWORK FOR MANAGING OFFENDERS (e.g. MAPPA, IOM)

Yes / No (delete as applicable)

Rationale and justification for chosen outcome route (free text):

Officer/Agencies represented and completed:

Section 4 - Legal Authority

Due consideration to be given to Common Law Power to disclose information about a person's convictions where there is a need for such disclosure to protect the public from crime;

AND

Disclosure would not be in breach of the Human Rights Act 1998, Data Protection Act 2018 or a breach of confidence.

Annex H - Template containing minimum information to be disclosed (including form of words)

Template to be retained by the Police

Section 1 - Details of Person Receiving Disclosure Information

Surname:

Forename(s):

DOB:

Address:

Section 2 - Details of Subject of Disclosure Information

Surname:

Forename(s):

DOB:

Section 3 - Details of Disclosure Meeting

Time:

Date:

Agency:

Persons present:

Role:

Section 4 - Undertaking by Person Receiving Disclosure Information

The following information should be read as it appears below (verbatim) to the individual receiving disclosure information. If the individual does not agree to this undertaking, you should consider carefully whether disclosure should proceed at this point. The decision to continue/to not continue must be considered prior to the actual visit and should be included in the risk assessment/decision making stage. Also provide the individual with further contact details that can be accessed 24/7 in case there are further child protection concerns.

Prior to receiving any disclosure information, you must clearly understand how you can use the information that is disclosed to you.

You can:

use this information to keep yourself and others safe;

use the information to keep your child(ren) safe;

ask what support is available;

ask who you should contact if you think you or others are at risk; and

ask for advice on how to keep yourself and others safe.

You cannot:

Share the information disclosed to you with any other person. If you feel you need to share the information with another person, you must contact the person or department who disclosed this information to you and seek their permission to do so.

Failure by you to keep this information confidential may result in legal proceedings being instigated against you, depending on the circumstances.

You will be asked to sign an undertaking to agree to abide by the above and keep the information disclosed to you confidential. If you do not agree to sign this undertaking, it may result in you not receiving disclosure information.

UNDERTAKING

I understand the section above about how I can use the information disclosed to me in this meeting. I understand that the information is confidential and that legal proceedings against me may result if I breach this confidentiality. I agree to abide by these conditions in relation to the information that will be disclosed to me in this meeting:

Signature (of person receiving disclosure information):

Time:

Date:

Section 5 - Details of Disclosure of Information (NOT to be left with applicant in any format)

Exact form of words being disclosed:

Section 6 - Declaration

I have received and fully understand the information that has been shared with me today. I understand the warnings I have been given about the confidentiality of this information.

Signature (of person receiving disclosure information):

Time:

Date:

Section 7 - Empowerment and Citizen-Focused Closure

An appropriate follow-on / safety plan should be agreed for the person receiving disclosure (page 19 of the guidance). This should give consideration to what action the person should now be advised to take to safeguard their child(ren) and any relevant children. Victims should be signposted to the relevant support services via link or leaflet (Annex J). There should be continued care support provided on an ongoing basis throughout the process.

This should be explained to the person and the possible consequences of failure to follow this advice should be made clear.

Empowerment Pack issued or directed to website? Yes / No (delete as applicable)

The plan should note which agency is responsible for checking that the person follows advice to safeguard the child(ren) concerned; this may be the police, Children's Social Care or another appropriate agency. It should be noted which agency will provide any support to the person to assist with this; this may be the police, Children's Social Care or another appropriate agency/charity (e.g. Women's Aid, Stop it Now!).

Any further queries or concerns contact:

Officer/Staff name:

Office No:

Department name:

24/7 Contact No:

Officer/Staff Making Disclosure

Officer/Staff completing:

Time:

Date:

Section Additional Information

Section No:

Details:

Annex I - Template form of words for non-disclosure

Template to be retained by police

Case Reference Number:

Dear (insert applicant's name):

The disclosure process provides a formal opportunity to contact the police in order to make a request for information about a named individual who is in a relationship. In the event that this individual has convictions for domestic abuse related matters, careful consideration is given to disclosing information to a person at risk and/or a person who is in a position to safeguard that individual. Disclosure may also be given where there is other information suggesting that the individual poses a risk of harm and disclosure is necessary to keep someone safe.

In relation to the enquiry that you made under the case reference number above, from the information that you provided to the police and the checks made on these details, we can confirm that in line with criteria set out above, the police have no information to disclose relating to the subject of your application. An absence or lack of information, however, does not mean that there is nothing to disclose which could be of risk of harm A or that any concerns are unfounded.

Although there is no information to disclose to you on this occasion, you must remain vigilant to any indicators that this individual poses a risk of harm. The decision in this case is based on the information available to the police service at this point in time. The police will never be able to offer categorical assurances about the risk posed by any individual. Please refer to the Applicant Pack provided as part of the process for further information about safeguarding.

You are thanked for making a request under the Disclosure Process and we would take this opportunity to reiterate that your enquiry is a positive step towards keeping people safe.

If you have any further concerns in the future regarding for your safety or someone else you are encouraged to report your concerns to the police or the Domestic Abuse Helpline on contact telephone numbers provided.

Signed:

Officer/Staff member:

Rank/Role:

Number:

Station/Department:

Date:

Local police telephone number:

Domestic abuse helpline:

Annex J - Support Available for Victims

Freephone 24-hour National Domestic Abuse helpline - 0808 2000 247

Age UK - an organisation that supports older people and victims of elder abuse. They can be contacted on 0800 678 1602. They are open from 8am to 7pm, 365 days a year.

Ask for ANI - a codeword scheme for victims to access support from the safety of their local pharmacy. Their contact number is 0191 287 7028. They are open from 8:45am to 4.30pm, Monday to Friday.

Broken Rites - a group offering mutual support and information to separated and divorced spouses and partners of clergy, ministers, and Church Army Officers. Please e-mail enquiries@brokenrites.org.

Clinks - an organisation that supports the voluntary sector working with people in the criminal justice system and their families. Clinks have a directory of services, although it is not exhaustive, and are experienced in supporting women who have suffered domestic abuse. Their telephone number is 020 7383 0966.

Dogs Trust Freedom Project - a specialist dog fostering service for victims fleeing domestic abuse. Their contact number is 020 7837 0006 (Mon-Fri 9am-5pm).

Hestia Respond to Abuse Advice Line - a specialist advice line supporting employers to help staff experiencing domestic abuse on 0203 879 3695 or via email Adviceline.EB@hestia.org 9am-5pm Monday to Friday.

Hourglass - a specialist organisation aiming to end the harm, abuse, and exploitation of older people in the UK. Their helpline can be accessed by phone on 0808 808 8141, by text on 07860 052906, or by emailing helpline@wearehourglass.org.

Galop - a specialist organisation and LGBT anti-violence charity offering support to LGBT victims. Their Domestic Abuse Helpline is 0800 999 5428.

Imkaan - a women's organisation providing dedicated support for black and minority ethnic women. Their contact number is 44 20 7842 8525, open Monday to Friday from 10am to 5pm.

Jewish Women's Aid - a specialist organisation supporting Jewish women and children affected by domestic abuse. Their helpline is 0808 801 0500 and is open Mondays-Thursdays from 9.30am to 9.30pm (excluding Jewish holidays and bank holidays).

Karma Nirvana HBA helpline - a specialist organisation supporting victims of 'honour'-based abuse and forced marriage. Their helpline is 0800 599 9247 and is open 9am - 5pm, Monday to Friday.

ManKind Initiative - a specialist organisation supporting male victims of domestic abuse and their children. Please call 01823 334244 to speak to them confidentially, open at weekdays from 10am to 4pm.

Men's Advice Line - 0808 801 0327 open Monday to Friday 9am-8pm or email info@mensadviceline.org.uk

Muslim Women's Network - a specialist organisation supporting Muslim women and girls. Their helpline is 0800 999 5786/ 0303 999 5786 or email: info@mwnhelpline.co.uk

National Domestic Abuse Helpline website - Live chat is available Monday - Friday 3pm - 10pm at www.nationaldahelpline.org.uk and

National LGBT Domestic Abuse helpline - 0800 999 5428 Monday to Friday 10am-5pm.

National Stalking helpline - 0808 802 0300, 9.30am to 4pm Monday to Friday.

NSPCC - The UK's leading children's charity working to prevent abuse, rebuild children's lives and support families. Their contact number is 0808 800 5000 or email help@nspcc.org.uk.

NSPCC FGM helpline - 0800 028 3550 or email fgm.help@nspcc.org.uk.

Paladin - an organisation that provides support for victims of stalking. Please contact us on 020 3866 4107 or email: info@paladinservice.co.uk.

Refuge - an organisation that provides support for all victims of domestic abuse and violence against women and girls. Their National Domestic Abuse Helpline is 0808 2000 247. Their main website can be found at www.refuge.org.uk and their tech safety website which provides information on tech abuse and step-by-step guides on securing technology can be found at www.refugetechsafety.org.

Respect - an organisation that works with male victims of domestic abuse and domestic abuse perpetrators on 0808 8024040 or visit respectphoneline.org.uk.

Restored - a specialist organisation working to tackle domestic abuse by partnering with churches and Christian organisations. Their contact number is 0203 9063 930.

Revenge Porn helpline - open between 10am and 4pm, Monday to Friday. 0345 600 0459 or help@revengepornhelpline.org.uk.

Sign Health Domestic Abuse Service - a specialist domestic abuse service to support the health and wellbeing of Deaf people. Please call on 0203 947 2600 or text 07966 976749.

Solace Women's Aid - an organisation supporting all victims of violence against women and girls. Please call on 0808 802 5565.

Southall Black Sisters - an organisation providing support for ethnic minority victims and migrant women. Their Helpline is 020 8571 9595, open between 9:00am and 5:00pm Monday to Friday.

Stay Safe East - a specialist organisation providing support for disabled and Deaf victims of domestic abuse. Telephone or SMS/Text: 07865 340 122.

Surviving Economic Abuse - a specialist organisation dedicated to supporting victims of economic abuse. Please email info@survivingeconomicabuse.org.

UK Forced Marriage Unit - 020 7008 0151

Victim Support - a specialist service helping anyone affected by any types of crime, not only those who experience it directly, but also their friends, family and any other people involved.

Women's Aid - an organisation supporting women affected by domestic abuse.

Wales-specific organisations

Live Fear Free helpline - 0808 801 0800 open 24 hours a day, 7 days a week.

Dyn Wales helpline - an organisation supporting male victims of domestic abuse. 0808 801 0321 or email support@dynwales.org (support for male victims).

Welsh Women's Aid - an organisation supporting Welsh women affected by domestic abuse.

BAWSO - a specialist organisation dedicated to supporting ethnic minority communities.

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Domestic Violence Disclosure Scheme (accessible)

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Domestic Violence Disclosure Scheme (DVDS) Statutory Guidance April 2023 Domestic abuse causes untold harm which can have devastating impacts on victims and their families. Tackling it in all its forms is a priority for the Government.

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About the commissioner Nicole Jacobs was appointed in 2019 as the first designate Domestic Abuse Commissioner for England and Wales. DAC role The Domestic Abuse Bill will give her specific powers which will enable her to fulfill this role, and places legal duties on public sector bodies to cooperate with her and to respond to ...

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We are a Centre of Excellence for Reviews after Fatal Domestic Abuse and for Expert and Specialist Advocacy and Peer Support

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The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
IN THE COURT OF PROTECTION
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF:P

HER HONOUR JUDGE WILLISCROFT :
1. The council was represented by Arianna Kelly, the commissioning group by Conrad Hallin and P by Francesca Gardner. Each of them provided detailed position statements before the beginning of the hearing drawing my attention to relevant legal cases and particularly important points in the evidence.

2. An application was made to the Court of Protection October in 2020. Although the court process is described with the council as applicant that original application was made on behalf of P by his litigation friend, a SB who is his paid Relevant Person's Representative who instructed lawyers to issue proceedings to challenge a standard authorisation imposed upon him and the restrictions that he then faced

3. The first hearing of this application took place in December of last year before His Honour Judge Afzal CBE. That hearing took place in private given that there were then thought to be ongoing police investigations that ought not to be made public.

4. The obtaining of evidence including an independent expert has taken some time and in due course it was agreed that the A Clinical Commissioning Group should be joined as the second respondent to the proceedings

5. The court had approved the instruction of a Dr Natalie Brotherton, a clinical psychologist, to report to the court about P's capacity in a variety of different domains. She's had to be given an extension to file a report on two separate occasions and as she reported in her oral evidence had some difficulty in obtaining the engagement of P in her assessment.

6. Because part of the assessment that the court is concerned with about capacity is the issue about P's capacity to engage in sexual relationships, the case was transferred to me to be dealt with as a Tier 3 judge in the Court of Protection.

7. P is a complex young man of 24 years of age. There is in the court papers before me a long and detailed history about him and the various enquiries made into his functioning over the years prepared by one of the two social workers who clearly know P very well.

8. What they tell me is that as a young person his family life was difficult. He is known to have been sexually abused by a male cousin on a number of occasions. There were also observed concerns about him engaging in sexually inappropriate behaviour with younger people than him. He began getting into difficulties at school.

9. His experiences at home began to involve supervision and difficulties and he has a criminal conviction for assaulting his younger brother. It is unsurprising that by the age of 16 he was first accommodated. He remained in this residential home once he became an adult and at this point decisions made that he lacked capacity to make decisions about where he lived and safeguards under the Deprivation of Liberty safeguards scheme were imposed to keep him and others safe.

10. In the course of this very detailed history I have read about in the filed papers it is obvious that a number of professional assessments of his functioning and health have been completed. He's been noted to have a learning disability which was once thought severe, later moderate and noted to have autistic traits and mood disorder. He has received medication for many years to manage his mood.

11. He began pursuing sexual relationships with others through the Internet and on occasion absconding in order to make arrangements to meet with other people for sex.

12. He has had limited engagement in the world of work and difficulties in getting to college because of the risk he poses to others. For a period of time it appeared that he was able to enjoy community and group activities.

13. His use of alcohol had become a feature of his life as an adult and the development of obsessive traits, which included in relation to mature males he made contact with. Now it seems he likes to try different drugs and on one occasion is known to have injected some.

14. Capacity assessments in relation to him have been undertaken over periods of time.

15. Concerns about him have included worries about his weight and that he doesn't eat or sleep if he becomes obsessed by someone. There was a period for example in 2017 when he was accessing the Internet regularly and became obsessed on dating websites when he would not eat and became very anxious. His medication was increased as a result.

16. He has identified since 2017 predominantly as gay but also at times suggested he might wish to marry a woman. His first assessment about capacity to consent to sexual activities was undertaken by Dr Thacker in 2017 and she suggested work be done to enhance his capacity through education about healthy relationships and safety. He began using an Internet dating app with support and supervision in 2018. From that time to date he has stayed out, without consent or permission to have sex with others and on many occasions taken drugs as well.

17. Around this time in 2018 there were concerns about his sexual contacts with other residents in the place where he lived and about his behaviour in the community on occasion. The place where he lived therefore gave notice about him concerned among other things about the level of his absconding which placed a burden on their resources and considering a different type of service was needed.

18. He was able to move to another service where he was able to have community access taking a mobile phone and the start of this was successful. This was a time when he worked as a volunteer at a shop for a period of time, getting up early and showering before he went, something which when I met him he told me he had very much enjoyed. However this role was lost because of his behaviour and the discussions that he had with others there. He began a relationship at this time which lasted for some months. At this point it was hoped that he would be able to move to supported living in the long-term and a plan for support and education existed.

19. However concerns grew about him and his disappearing without knowing where he was. At this time it appeared that he was provided with drugs and alcohol, gifts and presents and one of the people he was spending time with was introducing further men for the purpose of sex with him who is considered by the police to be a person of concern. At times he would be missing for days at a time.

20. In 2019 he revealed that he had had sex with random men and though he wanted them to wear condoms he'd had no choice about it because he feared they might beat him up. Soon after this he revealed that a number of people had had sex with him against his will by making him take drugs. Inevitably restrictions on where he lived were increased which he did not respond to well. He was encouraged to use methods to keep himself safe. He moved into the current place where he lives in September 2019.

21. At the start he was aiming to be able to have unescorted leave, find a job and get his own accommodation but he very quickly disappeared and it became apparent he had not told staff the truth about where he was going and it became apparent that he had returned to his former area and met a group of men understood to be involved in sexual exploitation.

22. His continued absconding, with concerns about taxis collecting him and it became apparent he was using a variety of serious drugs and it appeared being exploited. He was guarded and unwilling to discuss what had taken place to care workers. On a significant number of times the police have been involved to return him to his home and staff have also had to go out and fetch him when he has been uncomfortable but unable to make arrangements to return himself.

23. He has worked on sex education and about drugs knowledge and awareness but it appears that his drug use and the type of drugs he is taking have increased.

24. The concerns led to him having 2 to 1 support 24 hours a day. I am aware a decision was made, based on experience, that physical restraint was harmful to his mental health and it is not being used to prevent him absconding apart from one occasion which reinforced that this decision had been the right one. The premises are not locked but he is also despite quite a high wall able to escape too quickly to be followed.

25. Social workers have tried to assess his capacity to make decisions on multiple visits. On many occasions he has not wanted to engage in this, on some been under the influence of drugs and on others is not there. He's always found it difficult to talk about events in his past and chosen not to do so. This kind of experience has been replicated by Dr Brotherton's visits to him.

26. His current circumstances are that he shares a flat with two of the residents. It is clear he has a good relationship with the staff but is unhappy about the restrictions imposed upon him. He expressed to me that he would want to live in his own flat and suggested he would be able to manage his life. The reality is that right now though staff encourage him to take responsibility for some of the tasks of day-to-day living, in reality he takes part in very little. So far as I can understand it while he says he does wash his clothes almost all the tasks he does are as a result of encouragement and he cannot be relied upon to keep himself clean from one week to another, cook meals on a regular basis and often not eat regularly.

27. It's unsurprising that staff and those responsible for him are very anxious about his well-being. He is disappearing regularly and often appears to be with older men who exploit him. It is also clear that he likes to engage in sexual relationships with people he does not know, with them contacting him via Apps on his phone. As assessments have said this is not wholly unusual behaviour.

28. It is also noted that he has over the past few years acquired the skills for those assessing him to be able to confidently say that he has the capacity to engage in sexual relations.

29. Given that I will come on to discuss concerns about his contact with other people, which are relations and sometimes sexual it may seem rather odd for me to look at this as a separate domain of capacity but it is in practical terms a capacity that he does have.

30. As part of this court process I was also asked to consider whether he had the capacity to engage in social media and Internet activity. There are obvious concerns that this can make him highly anxious and of course is the source of the contact he receives from others that lead him going out to engage in sexual relationships which social services believe are often risky. It has not been possible to complete a proper capacity assessment about this and as the law is that capacity is assumed unless there is evidence to prove otherwise on the balance of probability it does not exist I am unable to make a decision about this.

31. I should explain the legal framework under which I'm working, under the Mental Capacity Act of 2005.

"S.1 (2) A person must be assumed to have capacity unless it is established that he lacks capacity.

(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.

S.2 People who lack capacity.

(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2) It does not matter whether the impairment or disturbance is permanent or temporary.

(3) A lack of capacity cannot be established merely by reference to:-

(a) a person's age or appearance, or

(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.

(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities ...

S.3 Inability to make decisions.

(1) For the purpose of section 2, a person is unable to make a decision for himself if he is unable:-

(a) to understand the information relevant to the decision,

(b) to retain that information,

(c) to use or weigh that information as part of the process of making the decision....

(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of:-

(a) deciding one way or another, or

(b) failing to make the decision."

32. If there was a factual dispute it must be resolved using the civil standard of proof namely the balance of probabilities.

33. I was able to hear and read some very detailed evidence from the key social worker Laura Smith. She was an impressive and careful witness who I'm sure reported accurately both all of her knowledge about P, the discussions that she has had with him and the concerns that she has in relation to his ability to make decisions about where he lives, the care he receives and the risk of exploitation by others, and risk of serious harm. I was impressed by the care and thought given to try and ensure P has the most autonomy possible in his life. She said in her written evidence "it is unclear whether the high risk taking behaviour and apparent disregard to safety is due to lack of capacity due to P's learning disability or due to his psychological make up and history of trauma and sexual abuse. It is also unclear whether P's perceived impulsivity is excessive or if it is acceptable levels for someone of his age and life experience." She pointed out she could not be clear whether it was a choice he made not to follow safety protocols or not and also noted he has accepted on occasion not telling the truth as he felt it was not others people's business and felt decisions about capacity were borderline given the complex picture.

34. She agreed with me too that there remain risks to other people from his own behaviour and reported a recent incident of concern where the police had reported to them that another man had complained that he hadn't wanted the sexual practice which P had suggested to him and it was felt this man could be more vulnerable. There is of course in the history a record of incidents of concern in relation to younger people and that risk remains.

35. I was also able to hear from Dr Brotherton. She is a clinical psychologist of considerable experience not just as an expert for the court but in clinical practice. The proceedings were delayed because she made so many efforts to meet with and assess P. Her original report was due by 15 January, but P did not engage with her, absconded at the second meeting and there were then difficulties in meeting with him and engaging with him.

36. She was an impressive and careful witness. She has written two reports in the bundle the first in March and the second on 12 May. She'd also considered the detailed written statements a social worker provided and a note of the meeting that I had with P in court the day before. She concluded in her written evidence that P met the first stage of the two stage capacity test due to his historical diagnoses of intellectual disability and Autistic Spectrum Disorder both of which qualify as an impairment/disturbance in the functioning of the person's mind/ brain, namely presenting significant deficits in his cognitive functioning. And that would suggest deficits in regard to social communication, social understanding and social interactions

37. She considered that he did lack capacity in almost all of the domains save for ability to conduct sexual relations and Internet and social media activity which she been unable to assess. This was as a result of his mild learning disability and the autism that affects his functioning. She described his learning disability as being something that means he has significant limitations with his cognitive functioning. That would mean those difficulties were present before adulthood. The assessments so far she said were not nuanced and there was no breakdown of the assessment which she would normally expect to see and have to work upon herself.

38. She noted that he didn't appear to have notable memory problems and for herself she found it difficult to be clear about how his learning disability affects him but noted his history has shown that he has had difficulties with school and with relationships throughout all his life.

39. In meetings with him she noted very limited or non-existent eye contact and gestures which led her to consider the diagnosis of autism was correct but in fact there is no autism assessment currently available of him. The spectrum in autism is enormous but it includes for all difficulties and emotional understanding and difficulties and the ability to interpret social messaging. There were obvious pointers to her that those difficulties exist in P.

40. Again she referred to a purported diagnosis of mood disorder. This was a very general expression she felt and in the paperwork she noted that self-harm he has engaged in before would be in line with the mood disorder but she felt it would be very helpful to have full assessment of his circumstances and noted that he is not well understood.

41. She was questioned in some detail on the connection between the diagnoses reached and the impact on his functioning. She was clear that his diagnoses cause his lack of capacity. She had looked at the evidence documents and the history to come to this conclusion

42. In discussion with her his understanding and ability to engage was very poor and she felt this was related to his learning disability. It was obvious that he did need support in his daily life she told the court. He did not have the ability to weigh up day-to-day decisions about caring for himself for example what he should eat.

43. She considered the assessments of his capacity to engage in sexual relations. This included a lot of information about concrete matters. She considered he was able to understand these matters better because of his autism.

44. That did affect his contact with other people. Someone with autism would have understanding and managing social consequences of events. He had very poor eye contact and would not be able to get information from this. He could not use gestures in an integrated way or interpret them. He was not able to adapt his behaviour to the social context it needed. He was immature in her meetings with him, he pretended to be asleep and was not able to adapt his behaviour to this important meeting with her. She had a sense that he could not imagine the social consequences of decisions and an example was when he had insisted that he wanted to go fishing but when it was actually offered he was overwhelmed and didn't want to do it.

45. This was an area of complexity which she felt needed thorough testing. In terms of the risks that he faced she felt his autism was probably the primary driver.

46. She noted he used sarcasm but was not sure he understood it. She noted he used language parrot fashion and repeats phrases which he thought were cool but she was not sure he understood them either. Her experience clinically led her to conclude his use of language in his discussions with her was quite superficial. She told the court that his language was not always congruent with his emotions and in her discussions with him, for example he would laugh when talking about something serious. People with autism often struggle with imagination which is an aspect of forward planning she explained. While he is able to talk about relationships with the social workers he is not able to pick up the subtlety of social interactions.

47. Her evidence was that the risk of exploitation was because he didn't understand non-verbal cues and more subtle social behaviour, he would only hear the language. He could respond she said to concrete observations, for example somebody was nice because they'd given him drugs, which he enjoyed.

48. Often somebody with autism would be anxious in social situations and she felt he would struggle. This was a combination of the learning disability and his autism.

49. She felt the fluctuating nature of his presentation was accounted for by the trauma he has experienced in the past. This was explained as a mood disorder label and played out she said in impulsivity, lack of understanding with others and difficulty in emotionally regulating himself. These three issues were not separate boxes but linked and transactional in nature. Each could exacerbate the other.

50. She felt the trauma he had experienced was a large part of the picture of his presentation. This would take a very long process of therapy to deal with or alternative positive behaviour approach. She felt this is very ingrained in his behaviour and he has shown he doesn't want to talk about vulnerable issues

51. However she was clear that his capacity didn't fluctuate.

52. She did accept that some of his behaviour would be typical of a 24-year-old. He is a man with testosterone who wants to have sex regularly. But she gave an example of him not charging his phone to ensure he was safe when he left the house. This was a good example of him being unable to plan which a 24-year-old would be able to do without any difficulty, and indeed arrange to get home. He relies on the police or staff from the home to do this and this is happening on a very regular basis.

53. She did not think he would gain capacity about contact at this point but felt the programs available for those with autism teaching concrete skills would be helpful and she felt once an in-depth assessment was completed the difficulties might be clearer. She noted too that currently he is emotionally immature and inevitably some maturity should be taken into account.

54. She felt there was an attentional difficulty. She noted that he was able to understand risk to others but not to himself which was unusual. She had wondered if there was a possibility of ADHD being relevant.

55. His difficulties were such she explained that if he was asked to do a task which involved two separate concrete activities such as buying something from one shop or something from another and there was a problem with one of them she thought he was unlikely to be to manage that.

56. She felt the amalgamation of behaviour relationships and the trauma of his earlier life impacts how his autism is manifest. She said she would frame the diagnosis of mood disorder as a trauma response and noted autism can in itself be traumatic. Its particular relevance is that when in very risky situations he cannot weigh up risk.

57. She accepted many people will make unwise decisions, for example about drug taking or who they spend time with. His difficulty in understanding social situations, combined with wanting to show his independence and inability to see or understand the reasonably foreseeable consequences of behaviour mean his disabilities lead to risks that other people without them would not face. She concluded on the balance of probabilities his lack of capacity and understanding was because of his diagnosis.

58. After hearing her evidence all parties agreed the clear picture that P lacks capacity in relation to this case, his care, his residence and his contact with others .

59. I am able to accept evidence of the incomplete assessments as while P did not want to engage the evidence including the social workers accounts and the explanation Dr Brotherton provided have given the court a full picture. I accept the diagnoses provided cause lack of capacity about key areas of decision making. They do not affect my decision about capacity to make a decision about sexual relations, most recently set out in A local authority v JB [2020] EWCA 735 in which the Court of Appeal confirmed 5 areas of understanding which a person needs to engage in sexual activity. It is obvious here that over recent years P has benefited from some learning about this area and a range of assessments taken over time confirm that he can understand and use and weigh information about these issues.

60. Decisions about contact are wide ranging. P sees family and friends and has had friends and a relationship which did not cause his carers concern. Cobb J specified in Re B [2019] EWCOP 3 the relevant information someone needs to have, in brief; who they are and the nature of the relationship, the kinds of contact that might take place, the positive and negative aspects of having contact with each person, the impact of a decision of whether to have contact or not and in this case particular decisions by P to meet people in the community in order to engage in sex or drug use.

61. I accept the social work evidence that P has an unrealistic view of how he can manage difficult situations, describing himself as invincible which he plainly is not. He does not appear to understand why others are worried about him and therefore cannot understand the risks he faces, and I consider this is not by an obstinate choice but by a lack of understanding and ability to weigh things he needs to consider. He is not able to put into action even fairly minimal basics that would keep him safe. I am aware on occasion the police have to search and trace him. He is able to describe what dreadful things might happen, but unable to relate them to himself so cannot weigh those risks in the balance.

62. P is unable in my assessment to make decisions about such contacts as he is often in a state it seems to me led by compulsion or obsessive behaviour, by the complex combination of age, sexual drive and diagnoses, driven too by trauma, when he is driven to meet people for sex. Their motivation and engagement with him he cannot understand or process and their communications he cannot interpret so that not just on a rare occasion but very regularly he is so uncomfortable that he calls police or carers to get him home. Then it can appear in discussion later that in fact he has been exploited, pressured and drugged for the advantage solely of other people's pleasure and he is unable to understand that to such an extent that he continues some relationships even when people have behaved in this way to him as it is apparent his understanding of social interactions is so limited.

63. Social workers have obviously considered with care whether wanting and engaging in risky multiple sexual relationships might be at least not uncommon for a young gay man like P and they have wanted to enable him to have as much autonomy as possible. It is I accept rather odd that he can understand the basics of sex but not have the capacity to engage in a relationship that is based almost exclusively on the need for sexual activity but this is as a result of looking at domains of understanding separately and part of ensuring autonomy is only restricted where an analysis of lack of capacity is clear.

64. I am clear from the evidence P lacks capacity about residence and care. It is obvious he could not look after himself as he states he would want to do and without constant support and encouragement evidence suggests at times he would not eat. He is not able to identify the key areas he needs to consider (Cobb J in Re B [2019] EWCOP 3) namely the areas he needs support with, the sort of support he needs, who might provide it, what would happen if he wasn't offered it or refused it and that carers should treat him properly. What he has said to others, and to me, about what help he needs does not reflect practically what constant encouragement he needs to keep himself clean and fed and also in a clean home like environment. While he knows who provides this to him, and I was glad to see has a good relationship with them, he does not consider he needs this support and suggests he would manage fine. He would not, and I consider his lack of understanding of his own abilities, the care he actually receives and the benefits of it clearly demonstrate he has no capacity in this area.

65. It is clear that at one time a road map of a move of P onwards to more independent living was being properly promoted but the range of concerns since have demonstrated the difficulty in doing so. Social care and health will now continue to consider how best to meet his needs. I have been impressed by the care and thought that has been shown by all involved in his care to date.

66. Lastly I have prepared a letter to P to explain my decision to him which I attach.

HHJ Williscroft

Dear P

Thank you for coming to meet me last week. You know there was a court hearing to discuss your capacity to make decisions about a number of different things last week, in other words whether you can make your own mind up about them or instead do not currently have the ability to do that. I will explain why I came to consider about some areas of your life you cannot right now make decisions for yourself, and in others you can.

I heard some evidence from your social worker Laura smith and also read about what social worker Robert Townsend has written. Dr Brotherton too gave evidence to me. She was asked by the court to consider if you had any conditions that might prevent you being able to make decisions for yourself. She told me you did not really want to talk to her much and I know you have had so many " assessments" by people in your life it must be hard to meet another new person and talk to them.

You were able to tell me while you liked where you live you wanted to live in your own flat and to be able to come and go as you please. You said you found managing money hard but you could manage some day to day things like washing your clothes but didn't often cook or do the cleaning.

I am a Judge of the Court of Protection. I was asked to decide if you could make decisions about where you live and what care you receive as well as your contact with other people. I can only make any decisions about you if you cannot make them yourself .Everyone has a duty to help you understand what is involved in decisions and increase your ability to make them yourself if you cannot do this now. I know for example that a few years ago you were not able to be so clear about what decisions about having sex involved and now you are. Everyone felt confident you could make a decision about sex in itself; but sex doesn't happen in itself, it involves forming relationships through contact with other people so I was asked if you could make those decisions about who you spend time with or not.

Everyone is able to make decisions for themselves unless there is proper evidence they cannot. There is no evidence you cannot make decisions about access to the internet and social media now so you can continue to make your own decisions about this.

Dr Brotherton looked through your medical records, spoke to and listened to your social worker and also to you to enable her to decide if any conditions meant the first part of the legal test I have to consider is met. What she told the court was that while you have had a number of assessments she didn't think they were as clear and accurate as she would like right now. She agreed that you have a learning disability , meaning it is harder for you than other people your age to understand things, but she thought it was mild now. She also agreed that you have an Autism spectrum disorder which is about how your mind processes the world in a different way , but also that traumatic and painful experiences in your past influence both those ways you function and I know you told me that you took some medicine to help your mood- but would forget to take it with you when you went missing.

To decide about your ability to make decisions the court has to consider whether you can understand and use or balance information to make a decision and I have to consider this for each area. This means you have the understanding to consider the good and the bad things about a decision and remember enough about them to make a decision. People are allowed to make any decisions, even bad ones, if they can do that.

Everyone agreed you did not have the understanding to take part in the court case which has been begun on your behalf as you wanted more freedom. Court business is very complicated, and I am sure that is right.

You currently have care provided that makes sure you have a clean room, meals to eat, a reminder about your medicine and reminders about washing yourself, and your clothes. You get help with shopping and managing your money. You are accompanied by people all the time too as sometimes you choose to leave and everyone is worried about you then. I am sure this feels restrictive but anyhow you do keep leaving and when this happens are often missing for a time so that no one knows where you are or who you are with.

This support is also intended to keep you busy and occupied. You told me you had enjoyed a job you had had and I know in the past you have hoped to get training.

I decided that social workers were right and you can't currently make decisions about where you live and the care you need. Though you say you can manage for yourself I do not think you would eat enough or be able to manage keeping a room and yourself tidy enough . Even when you go missing you are not now able to get yourself home asking either police or care workers to collect you .

I had to consider most carefully your ability to have relationships with other people or contact with them. I can see that you misunderstand how people behave to you and their intentions and sometimes this has resulted in you being in a scary situation, being hurt and not in charge. That is due to the conditions that affect you. It is possible that with growing older and help you will be able to understand people more and this may help you be able to make decisions about who to spend time with. You are not able to take advice right now from people who want to help you about who is a bad man to be with and people are able to take advantage of you sometimes. Even though you say you can get out of difficult situations the evidence is that sometimes that is not true right now. The care staff have tried to work with you to find ways to make you safer but you have not been willing to follow that advice. I consider that is because you lack the understanding to see that advice is needed and important to keep you safe.

Sex is a part of contact with other people but in law considered separately. Everyone was prepared to agree you could understand what decisions you and the person you have sex with have to take .

However the decision about who is a person who you can trust enough to have sex with is a decisions about contact and the evidence shows me that this is something you do not have understanding about . I agree people can choose to have sex with lots of people , and included in this is people they do not know at all but I have concluded you don't have the understanding to make decisions about contact with people because you have spent time with people who have abused you and later it is clear have not understood they have done that to you . You have chosen to get in touch with people again after telling they were not good to you. You have also become obsessed at different times by people and when you do that cannot reach a reasoned opinion about that person or listen to any information about them at all. That behaviour could cause you to get into trouble . I also have to remember that there have been times in the past when you have acted to younger people in a way that was improper and that reflected a lack of understanding on your part and again is something that could get you into trouble.

These are the reasons that I have decided that the court of protection is able to make decisions for you in the following areas

Who you have contact with

I must do this based on what is best for you and always take into account your own wishes about this.

This does mean some more hearings will be taking place to look at making good and safe decision s for you.

I know you have a representative and a lawyer who I am sure will explain this to you if needed.

Best wishes

Her Honour Judge Sue Williscroft

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A local Authority v P and CCG (JUDGMENT ON CAPACITY) [2021] EWCOP 48 (10 June 2021)

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New search] [ Printable PDF version] [ Help] The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person.

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Re A (Capacity: Social Media and Internet Use: Best Interests); Re B(Capacity: Social Media: Care and Contact) -Useful to look at safe contact with others (paragraph 32-33)

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Re A (Capacity: Social Media and Internet Use: Best Interests); Re B(Capacity: Social Media: Care and Contact) -Useful to look at safe contact with others (paragraph 32-33)

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Introduction

1. The application before me concerns Miss B, a woman in her 30s with learning disabilities. By this judgment, I set out my conclusions in relation to a range of capacity questions on issues relevant to Miss B's life, including her capacity:

i) To litigate in these proceedings (see [22]-[24]);

ii) To manage her property and affairs (see [25]);

iii) To decide where she resides (see [26]-[28]);

iv) To decide on her package of care (see [29]-[31]);

v) To decide with who she has contact (see [32]-[33]);

vi) To use the internet and communicate by social media; (specifically, it is agreed that the question is 'whether Miss B has capacity to make a decision to use social media for the purposes of developing or maintaining connections with others') (see [34]-[41]) (the question was framed in a similar way in Re A (Capacity: Social Media and Internet Use: Best Interests) );

vii) To consent to sexual relations (see [42]-[46]).

2. Given that the point at 1(vi) above is relatively novel, much attention has been given in these proceedings to what constitutes the "information relevant to the decision" ( section 3(1)(a) Mental Capacity Act 2005 : ' MCA 2005 ') to use social media for the purposes of developing or maintaining connections with others'. The Official Solicitor, who acted for A in , has submitted through Mr Karim QC and Miss Gardner that the relevant information can be pared back to three essential components; the Official Solicitor took a different, and more expansive, approach in Re A . The local authority (adopting a line more akin to the arguments advanced across the board in Re A ) has proposed that it should involve a fuller range of information. As it will be seen ([37]), I have taken a view which is closer to the approach of the local authority in this case, and of all of the parties in Re A .

3. My findings on capacity or incapacity set out below, whether as final or interim declarations, will provide a platform from which I will go on at a later hearing to consider best interests issues.

Statutory framework

4. I have approached the central issues arising here with keen attention to the statutory assumption that Miss B has "capacity unless it is established that [she] lacks capacity" ( in relation to the matters under debate, she is unable, "at the material time" (i.e. now), to make a decision for herself "because of an impairment of, or a disturbance in the functioning of, the mind or brain" ( practicable steps" to help Miss B to make the relevant decisions ( section 1(2) MCA 2005 ). My focus has been principally on section 2 and section 3 of the MCA 2005 – and specifically, on whether, section 2 MCA 2005 ). It is important in this case (and, as will be seen, influential in the outcomes proposed) to have regard to the availability and appropriateness of " section 1(3) MCA 2005 ); this is one of the three key parameters of the MCA 2005 . As the Mental Capacity Code of Practice stresses: "it is important not to assess someone's understanding before they have been given relevant information about a decision" (para 4.16) and that "it is important to assess people when they are in the best state to make the decision, if possible" (para 4.46).

5. The evidence has largely been directed to the familiar 'functionality' test contained in section 3 ; this requires me to consider whether Miss B can (a) understand the information relevant to each decision, (b) retain that information, (c) use or weigh that information as part of the process of making the decision or (d) communicate her decision (whether by talking, using sign language or any other means). If it is shown on the balance of probabilities that she is unable in any of these respects, then she is regarded as "unable to make a decision for [her]self". As is commonly the case, I have been most concerned with the issues of 'understanding' ((a) above) and 'using and weighing' ((c) above).

6. Having heard the evidence and received the submissions of counsel, I have had cause to consider whether I should make final capacity declarations under section 15 MCA 2005 , alternatively interim declarations under section 48(a) ibid.; interim declarations would be appropriate where the evidence is not complete, or where practicable steps could yet be taken to assist Miss B to make the decision but where there is nonetheless currently " reason to believe that P lacks capacity in relation to the matter". Particularly given the essentially binary nature of the capacity question, I am keen to ensure that all reasonable opportunities have been given to Miss B, where relevant, to demonstrate her abilities before reaching definitive conclusions.

Evidence and submissions

7. For the purposes of my determination, I heard oral evidence from Dr. Lisa Rippon, MBBS, FRCPscyh, Consultant Psychiatrist, and from Ms K, Miss B's social worker. I have been greatly assisted by their evidence, but I am clear that the decision on functional ability is ultimately mine not theirs ( CC v KK [2012] EWCOP 2136).

8. I have received helpful oral and written submissions from counsel, Mr. Garlick for the local authority, and Mr Karim QC and Miss Gardner for Miss B. I have had the advantage of submissions on the common social media issues from Miss Butler-Cole and Mr McCormack, Mr. Patel QC and Mr. O'Brien, and Mr. Allen in the case of Re A . I also had the benefit of reading a useful paper on social media prepared by Ms Sophie Hurst, a barrister.

9. Miss B attended at court, and indicated that she wished to speak with me; it was agreed with counsel that this would be appropriate, so that she could express her wishes and feelings to me directly, and so that she could feel part of the proceedings (see rule 1(2)(d) of the Court of Protection Rules 2017 ). We spoke together in one of the conference rooms for a little over a quarter of an hour, in the company of Miss B's solicitor (who took a note) and learning support worker. It was a pleasure to meet with her. She was chatty and in good spirits; I could not be under any misapprehension about the strength of her expressed wish to live with Mr. C.

10. In deciding on capacity to communicate by social media, counsel in this case had seen the proposed agreed formula of the outline 'relevant information' which counsel had prepared in the case of Re A (Capacity: Social Media and Internet use) (see [27] of that judgment), in respect of which I had heard the arguments in the previous week.

Background

11. Miss B suffers a learning disability and epilepsy and has considerable social care needs. She currently lives with her parents and sibling; although she has occasional overnight respite care which she appears to enjoy, and some community support, she is somewhat socially isolated. The family home is said to be unkempt and dirty; Miss B spends much of her time watching television. She enjoys colouring in pictures (an activity in which she was actively absorbed while I chatted with her at court).

12. Miss B struggles to manage her personal care and hygiene; she is grossly overweight. She is prone to confrontational behaviour when challenged, and can be physically aggressive. She is assessed as requiring support to maintain her safety when communicating with others; when she receives information which she does not want to hear, she often becomes dismissive, verbally aggressive and refuses to engage.

13. She is wedded to her mobile phone, and uses it to communicate via social media, principally using WhatsApp, Facebook and Snapchat. Miss B's social media activity has, over the last three years, caused repeated concern to her adult social care workers. She has been known to send intimate photographs of herself, and to communicate her address and other personal information about herself, to male strangers. She is very keen to be in a relationship with a male. She is known to search the internet for a boyfriend by typing in male forenames, and when men respond, she asks them directly whether they will be her boyfriend. Once she has made a link with a potential mate, and they respond to her, she views them as a 'friend' and will quickly tell them that she loves them and wants to meet with them. She routinely 'sex chats' with males.

14. Unsurprisingly, a number of specific safeguarding concerns have been raised in this respect. For example, in 2016, she established contact with a male (Mr D), who early on in their communications told her that he would slit his wrists if she did not send him money. It is not known whether she did send money. Miss B told her care workers that she planned to live with Mr D "and have children" with him, though she had not at that point actually met him. Mr D had a history of criminal offending, including domestic assaults, and was said to suffer from a personality disorder and mental ill-health; through multi-agency intervention, the police managed to track down Mr D and dissuade him from meeting with Miss B. However, during 2017, Miss B 'met' a number of other men through social media. Adult social services continued to monitor her behaviour and sought to advise her of the risks and support her.

15. In light of the foregoing concerns, Miss B's social worker – who has known her since 2011 – has conducted a number of capacity assessments over the last 2-3 years covering different aspects of Miss B's decision-making. Ostensibly inconsistent conclusions have been reached through these assessments over time about Miss B's capacity: while she has been shown to lack capacity in relation to consenting to sexual relations in October 2016, she was found to be capacitous in this respect in January 2017, and this position appears to have been confirmed in May 2018 (including an understanding of sexually transmitted disease (see [44] below)). While she was assessed as not having the capacity to understand the risks associated with engaging in conversations with males unknown to her in October 2016, she was found to be capacitous in this regard in January 2017; by May 2018 she was assessed as lacking capacity again to understand the risks of befriending strangers on the internet. Notably, Miss B has been assessed in relatively recent times as having capacity in relation to her care and support needs (assessment 4.11.16).

16. There is no single or clear explanation for the discrepancy in outcome of these assessments, as Miss B's learning disability and cognitive functioning is assessed as static not fluctuating. It seems likely that some 'teaching' offered by the community team for learning disability in 2017, educating her in relation to sexual relations and social media, was effective in those areas. Miss B appears to have retained information following that learning, at least for a short period; it is possible that she then forgot this information ( section 3(3) MCA 2005 of course provides that: " The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision") . There is also a small chance that there may have been either a lack of clarity on the part of the assessors about the application of the statutory criteria or the 'relevant information' which Miss B should know, and/or an inconsistency has crept in to the outcomes through assessments undertaken by different assessors. The variability of outcome might serve to underline the importance of presenting information to P in a way that is consistent and appropriate to meet the individual's needs and circumstances, attaching importance to explaining information using the most effective form of communication for that person (such as simple language).

17. In 2018, fresh concerns were raised about Miss B sending explicit sexual messages, intimate photographs, and money to men who were not known to her, but who she referred to as her "boyfriends". It was through this behaviour that she met Mr C. He is a man in his seventies who is a convicted sex offender, classed as 'medium / high risk' and subject to a Sexual Harm Prevention Order ('SHPO'). Although Miss B has been advised of the risks posed by Mr C, she bluntly refuses to believe the truth about his offending history. She remains in regular contact with him; she has met him several times, causing him on one occasion to be in breach of his SHPO. On at least one occasion she has stayed overnight with him at his home. Messages sent to Miss B by Mr C reveal that he describes her as his 'mistress' or his 'slave'. Miss B has confided in her social worker that she wishes to have his baby. Through Mr C it is believed that Miss B has met three of Mr C's 'friends' on social media, with whom it is said she has engaged in sex chats. Even recently, in discussion with Dr. Rippon, Miss B refuted as 'lies' what she has been told of Mr C's offending history. For his part, Mr C has worryingly confirmed to his probation officer that:

i) He is aware of Miss B's learning disability, and describes her as functioning as a 10-year old;

ii) He wishes to marry Miss B;

iii) He challenges the local authority's actions in informing Miss B of his offences;

iv) He remains in regular contact with Miss B;

v) He actively seeks females on Facebook.

18. In October 2018, at the instigation of the local authority, and satisfied on the basis of the information then available that Miss B lacked capacity to make a decision about contact with Mr C, I imposed an interim injunction on Mr C prohibiting him from having any contact with Miss B; this was confirmed more recently at an 'on notice' hearing. There is evidence (as yet untested) that Mr C has been in breach of my last order, and the local authority has issued contempt proceedings which are imminently to be heard by the court.

Capacity: discussion.

19. General observations : In reviewing the capacity questions engaged here, I have reminded myself of the importance of establishing the causative nexus between the impairment of mind and the inability to make decisions. In this regard, counsel has rightly focused, when testing the evidence and making submissions, on the extent to which Miss B is influenced in her decision making by others – notably her father and/or Mr. C. Undoubtedly both men do exercise an influence over her; I was told (though make no finding) that her father can be abusive to her, verbally, and imposes boundaries on her which she finds unwelcome, whereas Mr C is persistent, and it may be thought controlling through his continual communications with her via social media (generally WhatsApp). I am satisfied that influence is a factor, but I share the view of Dr. Rippon that it is not actually operative on her decision making, and is in any event not more significant than the clearer evidence about impairment of the mind (Parker J in NCC v PB & TB [2014] EWCOP 14 at [86]).

20. While there is some logicality to the strict decision-specific approach which I have summarised at [4] and [5] above, there is also some artificiality around the results. This case has revealed for me, once again, some of the anomalies of the required and disciplined approach in cases concerning capacity: thus, it will be shown that Miss B will be assessed as having capacity to decide on residence, but not her care (even if her proposed favoured residence is with someone who palpably will not care appropriately for her); she may have capacity to consent to sexual relations, but not have capacity to decide with whom to have those relations, or indeed any form of contact. That is the law which I must apply.

21. I have further borne in mind (and this is particularly relevant to the 'residence' question below) what Baker J (as he then was) said in PH and A Local Authority v Z Ltd & R [2011] EWCOP 1704 at [16(xi)]: "courts must guard against imposing too high a test of capacity to decide issues such as residence because to do so would run the risk of discriminating against persons suffering from a mental disability."

22. Capacity to litigate : Dr. Rippon is of the view that Miss B lacks capacity to litigate as a result of her learning disability. In reaching this conclusion, Dr. Rippon has rightly applied the test set out in Masterman-Lister v Brutton & Co. (No.1) [2002] EWCA Civ 1889 at [75] and [79]

" [75] ... the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law – whether substantive or procedural – should require the interposition of a next friend or guardian ad litem (or, as such a person is now described in the Civil Procedure Rules, a litigation friend) ...

[79] ... a person should not be held unable to understand the information relevant to a decision if he can understand an explanation of that information in broad terms and simple language; and that he should not be regarded as unable to make a rational decision merely because the decision which he does, in fact, make is a decision which would not be made by a person of ordinary prudence ."

23. She concluded that Miss B could not describe the nature of the current Court of Protection proceedings ...

"Despite me using simple language and explaining this information on a number of occasions, I do not believe that [Miss B] understood the nature of the current proceedings or could think through the consequences of issuing instructions ... [Miss B] lacked understanding of the information necessary to litigate in the current proceedings."

24. The parties agree this expert opinion which chimes entirely with the evidence of the experienced social worker, and I concur that Miss B does not have capacity in this regard and that I can make this as a final declaration under section 15 MCA 2005 .

25. Property and affairs : Dr. Rippon is the first professional to assess Miss B's capacity to manage her property and financial affairs; there is in fact relatively little material in the papers on which to form a view. What is apparent is that, when asked, Miss B has a very poor understanding of finances, a grossly inflated sense of her income from benefits, and demonstrated no real appreciation of how her money is spent. She showed no understanding of the risks of financial exploitation, or of the ability to prioritise her expenditure. The local authority submitted that there was reason to believe that Miss B lacks capacity in this area of decision-making for the purposes of section 48 ; Mr Garlick submitted that the fact that the family arrangements for dealing with finance had allowed Miss B no experience of being responsible for her finances meant that there was insufficient evidence that she would not in the future be able to manage her property and affairs, and therefore that a section 15 declaration was not appropriate. Dr. Rippon considered, having discussed these issues with her, that Miss B lacked capacity in this regard, and given the abstract nature of the concepts involved would not benefit from education in this area. The Official Solicitor agrees; so do I. A section 15 declaration will be made.

26. Residence : The widely accepted test of 'information relevant to a decision' on residence is that which is set out in Theis J's decision of LBX v K, L, M [2013] EWHC 3230 (Fam) at [43] namely:

i) what the two options are, including information about what they are, what sort of property they are and what sort of facilities they have;

ii) in broad terms, what sort of area the properties are in (and any specific known risks beyond the usual risks faced by people living in an area if any such specific risks exist);

iii) the difference between living somewhere and visiting it;

iv) what activities P would be able to do if he lived in each place;

v) whether and how he would be able to see his family and friends if he lived in each place;

vi) in relation to the proposed placement, that he would need to pay money to live there, which would be dealt with by his appointee, that he would need to pay bills, which would be dealt with by his appointee, and that there is an agreement that he has to comply with the relevant lists of "do"s and "don't"s, otherwise he will not be able to remain living at the placement;

vii) who he would be living with at each placement;

viii) what sort of care he would receive in each placement in broad terms, in other words, that he would receive similar support in the proposed placement to the support he currently receives, and any differences if he were to live at home; and

ix) the risk that his father might not want to see him if P chooses to live in the new placement.

27. Dr. Rippon was of the view that Miss B does not have the capacity to make a decision as to her residence. Dr. Rippon was particularly influenced in reaching this conclusion because of Miss B's difficulty with abstract concepts: Dr. Rippon opined that Miss B was unable to understand the implications of moving away from her current home, supports, and community. Dr. Rippon was further of the view that while Miss B was able to understand "who she would be living with at each placement" ((vii) above) she was unable to assess the risk of living with Mr C. While acknowledging the artificiality of this situation, it seems to me that the implications of living with a particular person (and the risks which this may pose) are more appropriately considered under decisions on 'care' and contact than residence. Indeed, when cross-examined by Mr. Karim, Dr. Rippon accepted that Miss B had a "basic understanding" in respect of all of the nine areas covered by Theis J's test above.

28. While it is fair to accept, as Mr. Garlick argues, that Miss B has an almost 'childlike' perspective on the issue of her residence, in my judgment it is the factor identified in (viii) above which is the most challenging to interpret or apply on the facts of this case. The Local Authority contends that Miss B lacks capacity in this respect because she is unable to understand or weigh the sort of care she would receive in each placement, and that if she moved to live with Mr C for instance, she would lose accepted sources of support which she may not be able to replicate. I agree that she may not have fully thought-through the implications of a move, but the evidence reveals to me that Miss B does understand in broad terms the care she would receive if she lived with Mr C in contrast to living at home or in residential care. That the relationship with Mr C may pose risks to Miss B is a separate issue which I consider under 'care' and contact. In this regard, I have reminded myself of the cautionary words which I cited above (see [21]) – namely that I should not impose too high a test of capacity to decide issues such as residence for fear of discriminating against Miss B. In this regard, I am not satisfied that the local authority has discharged the burden of proving that Miss B does not have capacity; I find – as the Official Solicitor argues – that she does have capacity to make decisions in relation to residence.

29. Care . It is agreed that the relevant test would be that set out by Theis J in LBX v K and others [2013] EWHC 3230 at [48] namely:

i) what areas she needs support with;

ii) what sort of support she needs;

iii) who will be providing her with support;

iv) what would happen if she did not have any support or she refused it and,

v) carers might not always treat her properly and that she can complain if she is not happy about her care.

The funding of care, and the overarching arrangements for monitoring and appointing care staff work are not part of the 'information relevant' to the decision.

30. Dr. Rippon is of the view that Miss B does not have the capacity to make decisions about her care: she could not tell Dr. Rippon why having a support worker was important to her to access the community; she could not recognise the importance of structure and routine in her day; she cannot identify the type or amount of support she needs in the home (personal hygiene, managing her medication, or cooking meals), or in managing her own behaviours; she denied the need for, or benefit of, her respite care home. She does not understand the risks posed by Mr C; Dr. Rippon was of the view that she does not understand her own care needs on a day-to-day basis.

31. The Official Solicitor accepts that presently there is (per reason to believe that [Miss B] lacks capacity in relation to" her care provision, but that there is a case for offering her (per practicable steps to help" her to acquire that level of understanding. I disagree that education or practicable help will make a difference. In too many ways (identified in [30] above) does Miss B fall short (in some respects far short) of a level of understanding of the care which she needs in very many areas of her life such as to enable her to make a capacitous decision. I accept Dr. Rippon's evidence that care provision is a complex and essentially abstract concept for which discrete educational packages "are not beneficial in improving an individual's understanding". I propose therefore to make a declaration in this respect under section 48 MCA 2005 ) " section 1(3) MCA 2005 ) " section 15 .

32. Contact . The "information relevant" to the decision about contact is said to include the list proposed by Theis J in LBX v K and others ( supra ) at [45] namely:

i) Who they are, and in broad terms the nature of her relationship with them;

ii) What sort of contact she could have with each of them, including different locations, differing durations and differing arrangements regarding the presence of a support worker;

iii) The positive and negative aspects of having contact with each person. Theis J added "This will necessarily and inevitably be influenced by [P]'s evaluations. His evaluations will only be irrelevant if they are based on demonstrably false beliefs. For example, if he believed that a person had assaulted him when they had not. But [P]'s present evaluation of the positive and negative aspects of contact will not be the only relevant information. His past pleasant experience of contact with his father will also be relevant and he may need to be reminded of them as part of the assessment of capacity";

iv) W hat might be the impact of deciding to have or not to have contact of a particular sort with a particular person ;

v) Family are in a different category; what a family relationship is.

33. The Local Authority maintains that Miss B lacks capacity in this area. The Official Solicitor accepts that Miss B currently does not have capacity but submits that she may be enabled to acquire capacity, and that I should make this as an interim declaration under section 48 MCA 2005 . In my judgment the evidence strongly reveals that no amount of "practicable help" will enable Miss B to develop capacitous decision-making in this area; as I have indicated above (see [17]), she has shown herself to be unable to accept the fact of Mr C's convictions (she has been told by five different professionals on seven separate occasions about these), and has been repeatedly dismissive of attempts to 'educate' her as to the convictions and their implications. She simply is not 'using and/or weighing' the information. Moreover, she has maintained firm denials of her own conduct in contacting men on the internet or sending inappropriate messages or images, when the opposite is patently known to be true. She is unable to explain how she could distinguish between a good and a bad person. I conclude that Miss B lacks capacity in this area, and am of the view that no amount of repeated discussion about the convictions is likely to shift her attitude; I propose therefore to make a declaration under section 15 .

34. Social media . I set out the context in which I consider this issue in the introductory section (paragraphs [1]-[7]) of my judgment in Re A . I simply propose to adopt that narrative for this judgment, without rehearsing it all again here.

35. In this case, I am concerned with Miss B's use of her digital device (mobile phone) to communicate by Facebook, WhatsApp, and Snapchat, both with those who are known to her, and specifically with those who are not known to her. It is that latter category about which I am most concerned for obvious reasons, particularly as she has routinely used social media to disclose personal information about, and/or imagery of, herself to them with a view subsequently to meeting with these strangers.

36. Counsel in the case of Re A had raised, as Mr Garlick and Mr Karim had raised, as a first question whether social media use should form a sub-set of either 'contact' or 'care' or whether it is free-standing. I approach this question in this case as I did in Re A at [25] and [26] as follows:

"[25] The first question on which I am asked to rule is whether, in undertaking a capacity assessment, internet and social media use should form a sub-set of a person's ability to make a decision about either 'contact' or 'care'. Having heard argument in this case, and in Re B , I have reached the clear view that the issue of whether someone has capacity to engage in social media for the purposes of online 'contact' is distinct (and should be treated as such) from general consideration of other forms of direct or indirect contact. I am satisfied that wider internet use is different from general issues surrounding care. There is a risk that if social media use and/or internet use were to be swept up in the context of care or contact, it would lead to the inappropriate removal or reduction of personal autonomy in an area which I recognise is extremely important to those with disabilities. As the Court of Appeal made clear in PC v NC and City of York Council [2013] EWCA Civ 478 at [35], the court should consider the issues reasonably specifically:

"The determination of capacity under MCA 2005, Part 1 is decision specific .... all decisions, whatever their nature, fall to be evaluated within the straightforward and clear structure of MCA 2005, ss 1 to 3 which requires the court to have regard to 'a matter' requiring 'a decision'. There is neither need nor justification for the plain words of the statute to be embellished".

[26] It seems to me that there are particular and unique characteristics of social media networking and internet use which distinguish it from other forms of contact and care; as I described above (see [4]), in the online environment there is significant scope for harassment, bullying, exposure to harmful content, sexual grooming, exploitation (in its many forms), encouragement of self-harm, access to dangerous individuals and/or information – all of which may not be so readily apparent if contact was in person. The use of the internet and the use of social media are inextricably linked; the internet is the communication platform on which social media operates. For present purposes, it does not make sense in my judgment to treat them as different things. It would, in my judgment, be impractical and unnecessary to assess capacity separately in relation to using the internet for social communications as to using it for entertainment, education, relaxation, and/or for gathering information."

37. I then went on in Re A , materially, to consider the test of 'relevant information', adding at [27-30] as follows:

"[27] The next question which arises is what is the 'relevant information' under section 3(1)(a) MCA 2005 on which the issue should be assessed? Although counsel in this case [ Re A ] prepared an 'agreed' formula, I have had the benefit of wider argument on the issue in the two cases. Critical to my assessment of capacity in this regard, and the issue on which focus has been brought in this hearing, is what should be the "information relevant to the decision" which P needs to understand for the purposes of determining capacity to make a decision to use social media for the purposes of developing or maintaining connections with others (within the functionality / ability test). I have been careful not to overload the test with peripheral detail, but to limit it to the "salient" factors (per LBL v RYJ [2010] EWHC 2664 (Fam) at [24], and CC v KK & STCC [2012] EWCOP 2136 at [69]). In applying that discipline, I am conscious that a determination that a person lacks capacity to access and use the internet imposes a significant restriction upon his or her freedom.

[28] It is my judgment, having considered the submissions and proposals of the parties in this case and in Re B , that the 'relevant information' which P needs to be able to understand, retain, and use and weigh, is as follows:

i) Information and images (including videos) which you share on the internet or through social media could be shared more widely, including with people you don't know , without you knowing or being able to stop it;

ii) It is possible to limit the sharing of personal information or images (and videos) by using 'privacy and location settings' on some internet and social media sites; [see paragraph below];

iii) If you place material or images (including videos) on social media sites which are rude or offensive, or share those images, other people might be upset or offended; [see paragraph below];

iv) Some people you meet or communicate with ('talk to') online, who you don't otherwise know, may not be who they say they are ('they may disguise, or lie about, themselves'); someone who calls themselves a 'friend' on social media may not be friendly;

v) Some people you meet or communicate with ('talk to') on the internet or through social media, who you don't otherwise know, may pose a risk to you; they may lie to you, or exploit or take advantage of you sexually, financially, emotionally and/or physically; they may want to cause you harm;

vi) If you look at or share extremely rude or offensive images, messages or videos online you may get into trouble with the police, because you may have committed a crime; [see paragraph below].

[29] With regard to the test above, I would like to add the following points to assist in its interpretation and application :

i) In relation to (ii) in [28] above, I do not envisage that the precise details or mechanisms of the privacy settings need to be understood but P should be capable of understanding that they exist, and be able to decide (with support) whether to apply them;

ii) In relation to (iii) and (vi) in [28] above, I use the term 'share' in this context as it is used in the 2018 Government Guidance: 'Indecent Images of Children: Guidance for Young people': that is to say, "sending on an email, offering on a file sharing platform, uploading to a site that other people have access to, and possessing with a view to distribute";

iii) In relation to (iii) and (vi) in [28] above, I have chosen the words 'rude or offensive' – as these words may be easily understood by those with learning disabilities as including not only the insulting and abusive, but also the sexually explicit, indecent or pornographic;

iv) In relation to (vi) in [28] above, this is not intended to represent a statement of the criminal law, but is designed to reflect the importance, which a capacitous person would understand, of not searching for such material as it may have criminal content, and/or steering away from such material if accidentally encountered, rather than investigating further and/or disseminating such material. Counsel in this case cited from the Government Guidance on 'Indecent Images of Children' (see (ii) above). Whilst the Guidance does not refer to 'looking at' illegal images as such, a person should know that entering into this territory is extremely risky and may easily lead a person into a form of offending. This piece of information (in [28](vi)) is obviously more directly relevant to general internet use rather than communications by social media, but it is relevant to social media use as well.

[30] I should add that I heard argument on the issue of whether to include in the list of relevant information that internet use may have a psychologically harmful impact on the user. It is widely known that internet-use can be addictive; accessing legal but extreme pornography, radicalisation or sites displaying inter-personal violence, for instance, could cause the viewer to develop distorted views of healthy human relationships, and can be compulsive. Such sites could cause the viewer distress. I take the view that many capacitous internet users do not specifically consider this risk, or if they do, they are indifferent to this risk. I do not therefore regard it as appropriate to include this in the list of information relevant to the decision on a test of capacity under section 3 MCA 2005 ."

38. In an assessment in May 2018, Miss B said that she would not talk to a stranger, but did not believe that someone who she met on Facebook was or would be a 'stranger'. When asked in 2016 about contacts made through social media, Miss B was unable to say how she would tell if someone was 'good' or 'bad' on Facebook. Miss B was further asked two years later (May 2018) how she would be able to work out who was a good or not a good person on social media; Miss B stated:

"... because she is talking/texting/messaging with them this in her views means that they are good. I asked how she knows the person is who they say they are, and how does she know they are telling her the truth? [Miss B] stated that they are good because they are speaking with her and stated she does not think anything else about it. I asked [Miss B] how she could keep herself safe. [Miss B] stated she would be alright and did not give any further information about this."

39. She told Dr. Rippon (January 2019) that the people she met on line were "generally good" and could not contemplate that people may lie online. Dr. Rippon was of the view that Miss B had struggled to identify strategies to keep herself safe, and was concerned that Miss B viewed 'friends' who she met on Facebook as important to her, not considering it possible that they were capable of doing her harm. She had difficulty in understanding what other people's motives might be. There is strong evidence that she is victim of the behaviours described as 'conduct risk' and 'contact risk' set out at [4] in Re A . Miss B's behaviours are not, I am satisfied, merely 'unwise'. They are attributable to the impairment of her functioning of her mind.

40. On the evidence, I am therefore satisfied that Miss B currently does not have capacity to decide to use social media for the purposes of developing or maintaining connections with others. I consider that attempts in the form of practicable help should be offered to enable her to acquire capacity; until those steps have been taken, I propose to make an interim declaration only under section 48 MCA 2005 at this stage.

41. In the event that, after practicable help has been offered, Miss B remains unable to make the decision about social media use, I apprehend that significant issues will arise in the 'best interests' evaluation in relation to the exercise of her freedoms which are protected by effective in limiting or supervising her internet and social media use without being unduly "restrictive of [Miss B's] rights and freedom of action" ( Article 10 and Article 8 of the European Convention on Human Rights and Articles 21 and 22 of the United Nations Convention on the Rights of Persons with Disability in the context of her use of the internet; Mr. Karim has helpfully drawn attention to these issues at this hearing. I readily acknowledge that any interference with those rights (by way, for example, of supervision, filters, 'Parental Control Applications', and monitoring) will have to be justified and proportionate. Careful thought will also have to be given to the ways which can be devised which are section 1(6) MCA 2005 ) .

42. Consent to sexual relations : The final area on which my determination is required is whether Miss B has capacity to consent to sexual relations. This is a question which is directed to the nature of the activity, rather than to the identity of the sexual partner. In this regard, I have specifically considered the Court of Appeal's decision in IM v LM and others [2014] EWCA Civ 37, in which the Court confirmed that the correct approach (per [79]) was as identified in a series of first-instance judgments including the decisions of Munby J (as he then was) in X City Council v MB & NB [2006] EWHC 168 (Fam) and Re MM, Local Authority X v MM [2007] EWHC 2003 (Fam), Mostyn J in D Borough Council v AB [2011] EWHC 101 (Fam) and Baker J's decision in A Local Authority v TZ [2013] EWHC 2322 (COP). I have had further regard to the more recent decision of Baker J in A Local Authority v P and Others [2018] EWCOP 10.

43. It is clear that the information relevant to the decision in this area includes:

i) the sexual nature and character of the act of sexual intercourse, the mechanics of the act;

ii) the reasonably foreseeable consequences of sexual intercourse, namely pregnancy;

iii) the opportunity to say no; i.e. to choose whether or not to engage in it and the capacity to decide whether to give or withhold consent to sexual intercourse.

iv) that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections;

v) that the risks of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom.

44. All assessments of Miss B in this respect have revealed that she understands the mechanism of the sexual act. As I earlier indicated, in 2016, a mental capacity assessment concluded that Miss B lacked capacity to consent to sexual relations because she did not understand the risk of sexually transmitted infection. Later assessment, following a period of education, (see [15] above) concluded that Miss B did understand that risk, had retained that information, and was able to weigh the information, sufficiently to satisfy professionals that she was capacitous in this regard. That said, there was some doubt about whether the professional conducting the assessment had done so applying the correct test ( IM v LM, AB and Liverpool City Council [2014] EWCA 37).

45. The evidence placed before me reveals that she continues to understand the mechanics of sexual intercourse and the risk of pregnancy (per Dr. Rippon). The evidence however reveals that she is once again less objectively clear in her understanding or appreciation of the risks of sexually transmitted infection. She recently told the social worker that she did not consider that risk of a sexually transmitted infection arose unless the male had a "dirty penis", and that as Mr C has a shower in his house ("and he had a clean dick and showered every day"), this risk would not arise. I regard this as such a flawed appreciation (her 'using or weighing') of the risks of sexually transmitted infection through sexual relations that it falls outside a proper 'understanding' for the purposes of section 3 ; indeed her 'appreciation' of the risks would be likely to give her a false sense of security on the issue. Dr. Rippon was not sure why Miss B's appreciation of sexually transmitted infection appears to have changed, but felt that with some practicable help, her understanding could potentially be restored and/or improved.

46. The Official Solicitor has argued that Miss B does have capacity in this area, and that this lack of clarity over the sexually transmitted infection is of no material consequence. I do not agree, and share Dr. Rippon's view that Miss B's understanding of the information relevant to sexual relations is currently erroneous, and that currently therefore there is reason to believe that Miss B lacks capacity in relation to this matter . The local authority proposes some education for Miss B in this area, with a view to re-assessing the capacity question once she has had that practicable help. I concur with this approach and propose to make an interim declaration under section 48 pending the completion of the delivery of this practicable help.

Conclusion

47. My conclusions are therefore as follows:

i) I declare that Miss B lacks capacity to litigate in these proceedings; this is a final declaration under section 15 MCA 2005 ;

ii) I declare that Miss B lacks capacity to manage her property and financial affairs; this is a final declaration under section 15 MCA 2005 ;

iii) I find that Miss B has capacity to decide where she resides;

iv) I find that Miss B lacks capacity in relation to her decisions on her package of care, and would not benefit from a programme of help in this regard; I propose to make a final declaration that she lacks capacity in this respect under section 15 MCA 2005 ;

v) I find that Miss B lacks capacity in relation to her decisions on contact , and would not benefit from a programme of help in this regard; I propose to make a final declaration in this respect under section 15 MCA 2005 ;

vi) I have r eason to believe that Miss B lacks capacity in relation to her decisions to use social media for the purposes of developing or maintaining connections with others and propose to make an interim declaration under section 48 MCA 2005 , directing a programme of work to offer her practicable help in this regard;

vii) I have r eason to believe that Miss B lacks capacity in relation to her ability to consent to sexual relations and propose to make an interim declaration under section 48 MCA 2005 , directing a programme of work to offer her practicable help in this regard.

48. That is my judgment.

# data[].attributes.attachment_link.title
B (Capacity: Social Media: Care and Contact) [2019] EWCOP 3 (21 February 2019)

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Introduction 1. The application before me concerns Miss B, a woman in her 30s with learning disabilities.

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Adult Social Work High- Risk Domestic Violence Cases.

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Adult Social Work High- Risk Domestic Violence Cases.

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The ‘Us Too’ Project: domestic abuse and women with learning disabilities, autism or both - ARC England

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The Us Too Project Learning disabilities, autism and domestic abuse The Us Too team is a group of women … Read More

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Social Workers' Conceptualisations of Domestic Violence and Abuse Against People with Learning Disabilities

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Domestic violence and abuse (DVA) is a critical social, cultural and legal problem in the UK and worldwide. It is known that disabled people, both men and women, are twice as likely to experience DVA as their non-disabled peers.

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We provide a specialist domestic abuse service to support Deaf people in finding safety and security.

Our service was previously known as DeafHope.

Information for professionals

Contact our Domestic Abuse Team

If you are in an abusive relationship or think you might be, please contact us.

Text 07800 003421
da@signhealth.org.uk

Any contact we have with you will be kept confidential. We understand we work in a small community and trust is one of our key values. For more information, please read our privacy statement.

The ' EXIT ' button at the top of the page can be used to leave our website quickly if you need to avoid being seen. It will take you straight to the BBC website.

What We Do

We provide the only domestic abuse service that specialises in supporting Deaf people. We currently work in London and the South East and offer remote support across England.

Everybody we work with has their own dedicated worker. This worker will create a safety and support plan by assessing your support needs and by discussing the things you want to happen. Having this plan allows you to understand what is in place to keep you safe.

We can offer support and advice linked to housing, children, therapy and the legal system. Your dedicated worker can also work with you when dealing with other agencies such as the police.

We also provide prevention workshops in schools, colleges, and within the Deaf community. Our staff are working to raise awareness amongst young Deaf people using BSL, as we believe this information should be shared in their first language.

Information

BSL resources and short films about topics related to domestic abuse

Contact our Domestic Abuse Team

If you are in an abusive relationship or think you might be, please contact us.

Text 07800 003421
da@signhealth.org.uk

Confidentiality is important to us. For more information, please read our privacy statement.
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We provide a specialist domestic abuse service to support Deaf people in finding safety and security. Our service was previously known as DeafHope. Information for professionals If you are in an abusive relationship or think you might be, please contact us. Text 07800 003421 da@signhealth.org.uk Any contact we have with you will be kept confidential.

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New Zealand Family Violence Clearinghouse

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Recognising and responding to coercive control and systemic entrapment

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Understanding Intimate Partner Violence: Why Coercive Control Requires a Social and Systemic Entrapment Framework

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Understanding Intimate Partner Violence: Why Coercive Control Requires a Social and Systemic Entrapment Framework

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Search DHRs: Search the Domestic Homicide Review Library – GOV.UK

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This document lists various research on VAWG

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This document lists various research on VAWG

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This resource is a 20 page document providing Idvas with the SafeLives Dash risk identification checklist, the Severity of Abuse grid, and full Idva practice guidance for using the SafeLives Dash risk checklist.

It has been endorsed by the Association of Chief Police Officers (now replaced by the National Police Chiefs' Council), Cafcass, Respect, the Greater London Domestic Violence Project (GLDVP), and the National Centre for Domestic Violence.

What's included

Dash risk checklist for Idvas

The first section of this resource is the Dash risk checklist. The aim of the Dash risk checklist is to enable Idvas and other frontline professionals to identify high risk cases and to decide which cases should be referred to Marac and what other support might be required. It also provides a common tool that agencies within the Marac process can use.

This section covers key information that Idvas can refer to when using the Dash risk checklist, information with the recommended referral criteria to Marac, and information about what the Dash risk checklist is not.

The Dash risk checklist forms part of this section. It provides 24 questions for Idvas to use when working with their clients.

Please note that the responsibility for identifying your local referral thresholds rests with your local Marac.

Severity of Abuse Grid for Idva services

The second section of this resource is the Severity of Abuse Grid which has been developed to be used with the SafeLives Dash risk checklist checklist. The grid is designed to give Idvas a framework for identifying specific features of the abuse suffered, such as physical or sexual abuse, stalking and harassment, and jealous and controlling behaviour / emotional abuse. Using the grid helps guide you in addressing your client's safety in an informed and coherent way.

Guidance is also provided within this section to help Idvas to complete the grid.

Please note that use of the Severity of Abuse Grid may also provide information that will be relevant for those cases going to Marac.

Practice guidance for using the checklist

The guidance provided in this resource helps Idvas complete the Dash risk checklist with their clients, and helps them identify which cases should be referred to Marac.

The Idva practice guidance is the largest part of this resource: it covers pages 8 to 20.

The guidance section of this resource covers:

Introduction

How to use the checklist

When to use the checklist

Who should the checklist be used with?

The evidence

Introducing the checklist to your client

How to use the practice guidance

Note of use of language

Step by step guide: using the checklist

Revealing the results to your client

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A resource providing Idvas with the SafeLives Dash risk checklist, the Severity of Abuse grid, and full practice guidance for using the SafeLives Dash risk checklist.