Out of your hands

Carers’ rights are increasingly important, not only for carers and those for whom they care, but also for solicitors looking to maintain, serve and increase their ?client base.

There is no single official definition of a carer, but if we ignore the infinite possibilities for complication, we can say that a carer is a friend, neighbour or relative helping to care for someone on a regular, but informal and voluntary basis. Such work ranges from minimal but regular help with simple and specific household tasks, to continuous and general ‘live-in’ care.

It is estimated that there are nearly 6.5 million carers in the UK. That’s one in eight of the adult population. The number of carers is up nearly ten per cent from 2001 and is expected to rise ?to 9 million by 2037 (‘Facts about carers ?2012’, Policy Briefing, Carers UK, September 2012).

Carers UK, a national charity that helps carers, states bluntly that “caring is likely to touch everyone’s life at some stage or another” (‘Tipping Point for Care: time for a new social contract’, Carers UK, February 2010).

Monetary value

It is impossible to overestimate the importance of carers to social care in the UK. It has been estimated that the annual monetary value of carers’ work is £119bn. There are more than twice as many carers as there are NHS and social care employees combined.

Advising carers of their rights offers an increasingly rewarding professional and business opportunity to solicitors in the private client market.

It is not only the sheer number of carers that makes knowledge of their situation increasingly necessary, but also the intensity of their situation. Research suggests that carers suffer financial, health, relational and work-related challenges because of the care they give to others, mostly caused by the pressures of time and associated stress.

Both the importance of carers and the pressures upon them will continue to increase beyond 2017, the year that Carers UK have referred to as a ‘tipping point’ (‘Tipping Point for Care’ and the adult care blog on the Community Care website, www.communitycare.co.uk/blogs/adult-care-blog/), when the demand for carers exceeds their supply.

As the number of carers and the demands upon them continue to increase, it will become more important for private client practitioners to be able to offer them high-quality advice.

The rights and entitlements of carers are many, varied, complex and interrelated. Only a non-exhaustive and very broad overview is possible here.

Carers who provide, or intend to provide, a substantial amount of care on a regular basis (conditions that are subject to official guidance) have a right to a local authority carers’ assessment upon request and in conjunction with the assessment of the person they care for. Such assessment may lead to support being offered to the carer, the person being cared for or to both.

Carers have various specific employment rights that overlap to ?a large extent with rights to parental leave and with rights under the Equality Act 2010.

Support service

One of the most important services offered to carers by local authorities is ‘respite care’. Legally and technically, this is provided as a service to the person being cared for (for example, a short period of residential care to give the carer a break). There is no general legal ‘right’ to respite care, but its value is widely recognised and dedicated funding is available.

Following assessment, local authorities have a wide discretion, subject to guidance, to provide services to carers to “help the carer care for the person cared for” (Carers and Disabled Children Act 2000, s2(2)(b)) and/or a direct payment to the carer (in which case, a carer’s earnings will be disregarded and the direct payment is itself disregarded for welfare benefit purposes).

Carer’s allowance is the main financial help available to those who care ‘full-time’ for those in receipt of a disability benefit (among other conditions). It is paid at the relatively low rate of £58.45 per week.

Having said that, it has been estimated that over £800m in carer’s allowance is unclaimed, representing thousands of pounds in individual cases (‘Carers missing millions: a report into carers’ unclaimed benefits’, Carers UK, June 2010). It is important that practitioners should be able to advise carers on this entitlement.

Other financial benefits available to carers include disability living allowance or attendance allowance (in the carer’s own right) and ordinary council tax and housing benefit (both of which can be enhanced by the carer premium).

In addition, depending upon ?the carer’s circumstances, it may ?also be possible to apply for a council ?tax exemption, discount or ?disability reduction.

Research shows that carers are increasingly elderly, ill or disabled themselves. It is important to ensure that carers are receiving all of the ‘ordinary’ benefits to which they are entitled in their own right apart from those specifically aimed at carers.

Despite the range of rights and entitlements outlined above, there is ?a consensus, at least partly shared by the government, that more support needs to be offered to carers.

The major proposed reforms are included within the Draft Care and Support Bill. Clause 10 would impose an obligation on local authorities to assess a carer where it appears to the authority that the carer may have need of support.

There would be no requirement for the carer to give regular and substantial care as is required now. The threshold for such an assessment appears to be very low, similar to that provided for service users themselves by section 47 of the NHS and Community Care Act 1990.

Clause 19 would, subject to eligibility criteria and a financial assessment, impose an obligation on a local authority to meet a carer’s need for support. According to the white paper, these changes are intended to remove variations in services across the country and “many” (‘Social Care White Paper, Caring for our future: reforming care and support’, July 2012, Cm 8378, p35) of the limitations of the current law.

In general terms, we can expect these provisions to become law, albeit perhaps in amended terms, given the volume and detail of the response to the consultation on the draft bill.

Gap filling

Despite the fanfare given to the government’s social care reforms (“the greatest transformation of the system since 1948”, Andrew Lansley, Secretary ?of State for Health, introducing the white paper, 11 July 2012), it is inevitable that there will continue to be gaps in the support given to carers, especially as their numbers and importance continue to increase.

Most notably, in the public sector, the NHS does not owe legal duties to carers similar to those owed by local authorities. In the private sphere, no general duties are imposed upon employers towards carers. As far as the draft bill itself is concerned, it is not clear whether the very important new duty on local authorities to promote an adult’s well-being (clause 1) will directly benefit carers. The government has given no indication that it intends to clarify or act in any of these areas.

Beyond the passage and eventual implementation of the draft bill, it is virtually certain that the rights and support given to carers will increase and become more complex.

I am sometimes asked if I have any general guidance to assist those advising carers. I offer three suggestions, two ‘professional’ and the last having more to do with the ‘business’ of providing advice:

• First, we need to be aware of the whole situation of a carer. Research clearly indicates that carers are likely to be facing difficulty in their employment, finances, health and relationships. None of these aspects may relate directly to the issue upon which we are asked to advise, but they will undoubtedly all contribute to what is usually a very difficult situation as a whole. Our questioning of a carer should be sufficiently wide to ensure that our advice takes account of these wider ‘background’ issues.

• Second, we need to understand that enhancing the position of the person being cared for will also help the carer. As in any other matter, we need to be absolutely clear about who our client is, but the position of a carer is inextricably linked to that of the person being cared for. Indeed, the rights of the carer will often depend upon the circumstances of the person being cared for. Conversely, however, we should also be quick to see when the interests of a carer and the person cared for conflict, in which case separate advice will be required.

• Third, private client practitioners are often reluctant to get involved with carers’ issues, or social care issues at all. I feel that this view is flawed.

?In addition, simply because of demographics, the social care market is growing; the age group concerned is better able to pay for advice than any other. Finally, what may start as a ‘care’ (or specifically ‘carer’) case will often bring with it conventional ‘private client’ work (wills, probate, conveyancing, etc).

The law relating to carers is of growing importance. From both a professional and a business point of view, it represents a growing and rewarding opportunity.