Assessment is the process whereby professional evaluation and comparison of people’s situations and needs are filtered through eligibility criteria set so as to enable an authority to meet the needs which survive that filtering process without running out of money.
Assessment is specifically mentioned in statute, and before that was the case, assessment was implicitly authorised by the very fact that authorities had to make up their minds whether people qualified for services or not – that could not be done without some kind of thought process related to the individual’s circumstances.
Assessment is performed pursuant to statute, by both health and social services authorities; express provisions govern social care assessment, and assessment is implicit in the governmental position at both one and the same time that NHS services are determined by clinical need, whilst NHS bodies have to stay within the budgets provided for them.
Section 47 of the National Health Service and Community Care Act 1990 places a duty on UK local authorities to carry out an assessment of an individual’s needs for community care services where it appears to the authority that an individual for whom it may provide or arrange for the provision of community care services, may be in need of such services. The authority must then decide whether the individual’s needs ‘call for’ the provision of services, having regard to the results of the assessment.
Some people are entitled to an assessment on demand (disabled people, under the Disabled Persons (Services Consultation and Representation Act) Act 1986) whilst most other people have to satisfy an authority that they meet at least the low threshold in s47 above, for consideration. Carers can now be assessed for services in their own right, but have to be considered to be likely to be providing a substantial amount of care. Potential service users have to satisfy the threshold criterion in s47 of the 1990 Act, but that is not very difficult (see the Penfold, and Parker cases).
Assessment divides up into two or three distinct stages, as far as the courts are concerned. There is firstly the setting of the eligibility criteria in the first place, and the question of how to determine, or make consistent decisions, as to who gets through the screening gateway for assessment proper, against those criteria. Then there is the identification of the needs of the client, and then the provision decision, which turns upon whether the needs which have been identified trigger service provision against the authority’s current discretionary criteria. Unmet human need is a perfectly lawful possibility, for the needs, whilst valid and pressing, might not be for something the authority is prepared to regard as a community care service; alternatively, the needs may be squarely within the range of human problems which the authority has set out to ameliorate, but may not be severe enough to justify intervention and the allocation of public money to that particular person, in view of others’ competing needs. After that provision decision, comes the last bit of the community care process which is care planning, but we do not think that this comes within the notion of the assessment function itself.
Up to the year 2001 there was nothing other than fairly old policy and practice guidance for authorities, from central government, and of course case law, to help service users, carers or anyone involved in care management, to know what an assessment required, in order to count as an assessment. Authorities were and still are entitled to make up their own minds as to what would be appropriate, so systems differ around the country. This discretion, however, was always subject to reasonableness, in the sense that a system of allocating services on the basis of say, weight or hair colour would obviously be ridiculous, given the context in which the assessment would be done – that of deciding who gets what, by way of social care services. Whilst generally not this bizarre, some authorities’ assessment processes have been so superficial in the past, that it may have been possible to allege in a legal context that they were not capable of amounting to ‘assessment’.
Since May 2002, the government has issued strongly worded guidance called Fair Access to Care Services which impacts on assessment processes and Eligibility criteria. Furthermore, guidance about the government’s vision of ‘single’ assessment (the avoidance of duplication in interviewing and recording as between health and social services and other agencies in the community) has also been issued, which will change the emphasis in screening procedures, as well as with regard to assessment proper. There is a definite shift of position noticeable under the present government, towards more standardisation of health and social care decision-making, in the interests of nationwide equity of access to services.
Until that guidance was issued, there was only case law to help embattled local authorities get their heads round what was lawful, and yet that case law serves as a good enough guide, we think, for those not put off by the task of understanding how the judgments fit in with practice.
The infamous Gloucestershire County Council ex p Barry case certainly did determine that a shortage of financial resources is legally relevant to the assessment of the needs of disabled people under section 2 of the Chronically Sick and Disabled Persons Act 1970 (CSDPA). But it did so in such a way as has, we think, been gravely misunderstood by Members and senior management, who have translated it, often with some relief, no doubt, into phrases such as ‘We will endeavour to provide services to meet assessed needs, subject always to available resources’ in their Community Care Plans and Charters – when in fact the Barry case stopped far short of such a conclusion and short of interpreting social services framework in the same way as had been the case for the NHS legal framework (see Hincks).
established that the existence of ‘needs’ for services may be identified against an authority’s locally agreed eligibility criteria, which have been set with regard to the authority’s budgetary position, and that the duty to make arrangements only arises when the authority is satisfied that making the arrangements is necessary to meet the needs assessed against the budget driven criteria. So far so good for budget managers’ peace of mind. On the other hand, the case also decided that although the criteria for ‘satisfaction’ of that necessity may be altered by the local authority, depending on the resources available, the law is that once the duty to make arrangements has actually arisen, a lack of resources is legally irrelevant to performance of the duty.
The Gloucestershire case thus confirmed that eligibility criteria are a legitimate tool for rationing an authority’s limited resources, a position that was by no means certain hitherto. The decision further entailed that ‘unmet need’ of a factual human nature can now be openly acknowledged as existing, as it is unlawful to fail to meet that need only where it has also been acknowledged as constituting a need for services which the authority has agreed to provide for, but then runs out of money. However, local authorities tempted to set eligibility criteria so high that only very few of those service users at severe risk of harm ever qualified, needed to heed the Court’s warning: the setting of criteria at an unreasonable level would be vulnerable to challenge as unlawful, by way of judicial review, as an unreasonable exercise of discretion.
Read properly, the case meant that it was simply not open for local elected members to prioritise social services so low that other directorates get the lion’s share of the budget, to the detriment of the discharge of these duties.