Scope of the inquiry into challenging decisions about adult social care

Notice of publication in accordance with paragraph 2 of Schedule 2 to the Equality Act 2006.

Statutory inquiry under section 16 of, and Schedule 2 to, the Equality Act 2006 into challenging and monitoring decisions about adult social care and support in England and Wales.

Local authority decisions about individuals’ entitlements to adult social care or support have significant equality and human rights implications. They affect the ability of older and disabled people and carers to have choice, control and dignity in their day-to-day lives, maintain relationships, live independently and participate in their communities.

Our Inquiry will consider the effectiveness of existing methods of challenging local authority decisions about individuals’ entitlements to adult social care or support in England and Wales, including – but not limited to – complaints to local authorities and Ombuds, and judicial review.

1. We will examine:

• People’s experiences of challenging, or attempting to challenge, decisions about adult social care or support through both formal and informal routes. This includes experiences of challenging, or attempting to challenge, a failure to make or a significant delay in making decisions.
• Whether people are provided with adequate information about their rights to social care or support, about the decision(s) made, and their legal rights to challenge decisions.
• The adequacy and availability of advocacy support to challenge decisions (we may also look at advocacy support in the assessment of needs and the planning of care and support).
• Whether people are able to obtain redress or an effective remedy.
• Whether local authorities and other relevant bodies learn from challenges to improve decision-making in future, and examples of good practice.
• Whether there are effective systems in place to ensure accountability, and monitor quality and consistency of decisions about individuals’ entitlements to adult social care or support.

2. The Inquiry will consider experiences of challenging or attempting to challenge decisions about the care and support of adults aged 18 and over. It will also consider experiences of challenging or attempting to challenge decisions about support for adult carers who are caring for anyone aged 18 or over.
3. The types of social care and support decisions that are in scope for this Inquiry are:

• Decisions in relation to assessment of care or support needs, including which needs, if any, are accepted as requiring local authority-resourced care or support and whether and how needs are assessed (for example, by telephone, paper or in person).
• Decisions about how or where social care or support needs will be met, including the type and adequacy of care or support offered and decisions about direct payments, and
• Decisions that result in a change in the needs that the local authority accepts require care or support, or a change of care or support package upon review.

We may consider other types of local authority decisions in relation to individuals’ access to adult social care, such as decisions about financial assessments and charging for care and support.

4. We will consider the experiences of those sharing different protected characteristics, including those who may have difficulties accessing or using methods of challenging local authority decisions.
5. The Inquiry will consider evidence from 1 April 2018 to date. It may exceptionally examine evidence from before then where relevant.
6. The Inquiry will not consider:

• Complaints about poor service in the delivery of care or support or provider failure.
• Decisions about healthcare provided under the National Health Service Act 2006 and National Health Service (Wales) Act 2006, including the provision of social care as part of a package of NHS Continuing Healthcare.
• Decisions about health care for people discharged from mental health settings under s117 Mental Health Act 1983. We may consider decisions about social care for people discharged from mental health settings under s117 if we receive evidence on this issue.
• Decisions about where individual adults are ordinarily resident and disputes about which local authority is responsible for a particular individual.
• Decisions made in relation to safeguarding investigations.
• Substantive issues about charging for care and support, such as the amount of charge or whether the person should be charged, and charging policies.
• Decisions about whether individuals have capacity to make decisions about care and support or any other decisions which come within the jurisdiction of the Court of Protection under the Mental Capacity Act 2005.

7. The Commission will publish a report of our findings and may make recommendations in accordance with Schedule 2 paragraph 16 of the Equality Act 2006.

8. For the purposes of these terms of reference the following definitions apply: 

• Disabled means having an impairment, mental or physical, which has a substantial adverse effect on the person’s ability to carry our normal day to day activities, when the effects of medication and aids are discounted. (section 6 and Schedule 1 of the Equality Act 2010)
• Human Rights in the context of this Inquiry are defined in section 9 of the Equality Act 2006, and include Articles 3, 8, and 14 of the ECHR, Article 19 of the United Nations Convention on the Rights of Persons with Disabilities, and Article 12 of the International Covenant on Economic, Social and Cultural Rights. 
• ‘Adult social care’ means the provision of care and support and anything else that can be provided to meet individuals’ needs for care and support, or carers’ needs for support, including but not limited to accommodation in a care home or other form of residence, domiciliary care in people’s homes, personal assistance, day care and provision of adaptations and equipment and whether provided directly or by way of direct payments. This includes care and support that is arranged or commissioned by a local authority, whether provided by a public, not for profit or private entity.
• ‘Social care laws’ refers to the Care Act 2014 and the Social Services and Well-being (Wales) Act 2014, s. 117 Mental Health Act 1983 and regulations made or guidance issued under these Acts.
• ‘Protected characteristic’ means the characteristics protected by the Equality Act 2010 (set out at section 4 of that Act), which are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation
• ‘Adult carer’ means any adult who is an informal or unpaid carer. It excludes care workers.
• ‘Advocacy support’ means both statutory and non-statutory forms of advocacy.

9. We will review existing evidence and gather further evidence from social care users, families, unpaid carers, local authorities and other key stakeholders including academics and experts, lawyers, advice, advocacy and support organisations, and relevant voluntary sector organisations.
10. We may decide to use our powers under Schedule 2, paragraphs 9-14 of the Equality Act 2006 to obtain the required evidence if necessary. During the course of an inquiry, we may give notice under this paragraph to compel any person to provide information or produce documents in their possession, or to give oral evidence.

To contact us about this inquiry email the social care inquiry team.