Delay in assessment and provision decision-making, and in actual provision of a service thereafter, is a constant concern to authorities. It can happen by reason of inadequate resources, on a corporate-wide or a departmental basis, or because of lack of staff time or money, (and staff shortages can have more to do with the general trend in the country, not just poor pay and conditions), bad planning, unforeseen circumstances or impossibility of performance due to a current complete lack of a service, suitable accommodation etc., in turn caused by uncontrolled market forces or even fire or flood etc.
There are plenty of local government and health service ombudsmen’s decisions about delay, particularly with regard to equipment and adaptations which may be used as a guide as to what is reasonable and what is not, in that field. Delay in the field of assessing and providing for adaptations or equipment, however, affects a person’s daily lifestyle and quality of life but although significant, it is not usually life threatening. The absence of intimate personal care is more fundamental.
Furthermore, it must be remembered that the holders of those offices only need to conclude that there has been maladministration, and not illegality or irrationality or a breach of human rights, before they can uphold a complaint.
Researches suggest that for delay which involves indignity, distress and reliance on reluctant family members for what should have been the authority’s responsibility, the going rate for compensation recommended by the Ombudsman may be in the region of £50 a week (for the recipient complainant to divide, as he chooses, amongst the people who were affected by the delay).
For instance, Avon County Council (1997) took 16 months to organise a care package – payment of £2750 recommended.
Barking and Dagenham (1997): £500 for 3 months delay in OT functions.
Barking and Dagenham (1998): £3000 for more than 2-3 years delay in providing adaptations.
Bristol City Council (1998): where ‘the toll on the family’s health and well-being must have been enormous’ – £20,000 for several years’ maladministration – no detail available as to exactly how long….
Warwickshire County Council (1997): maladministration found on the additional basis that the Complaints Panel failed properly to evaluate the daughter’s claim for compensation, ‘as it was ideally placed to do’.
Westminster City Council (1996): recommendation made that the council pay compensation to reflect services the man should have had since 1991 – the amount to be agreed with the ombudsman!
Delay and the courts
It seems to be the case that the courts will permit all health and social welfare functions, even specific duties, to be read as implicitly requiring performance within a reasonable time. Where the function is a discretion, and not even a duty once a need has been assessed, (which is the status of some of the non-residential care functions imposed on authorities under the Health Service and Public Health Act 1968 (for older persons) and the National Assistance Act (for disabled persons)), the courts are likely to allow the budget position to be weighed up with regard to the issue of when the function must be discharged.
Of course, regardless of whether the function is a duty or a discretion, the question of reasonableness of any delay will most obviously depend on the urgency of the service applicant’s needs. Clients who are at the extreme end of need without anyone to care for them, simply will not survive if there is a delay in service provision, so it is hard to see how it could be reasonable or prudent to make someone wait.
There is no case law on the point at which delay becomes unreasonable, probably because no two cases will ever be the same, but there are pointers: see the Tucker and Lambeth ex p A cases for examples of ways in which a court might look at delay:
In Tucker, the authority spent 2 yrs 3 months spent working towards concluding an assessment, before successful judicial review proceedings were commenced. The absence of any concluded process or any decision as to care planning, while the client remained in NHS long term accommodation, made it easy for a judge to say he knew unlawful delay when he saw it…
In Lambeth, a housing delay case, 6 – 9 months passed after a formal determination of a need for re-housing had been made but this was insufficient delay to constitute unreasonableness, or convincing evidence of a rigid fettering of the Housing Authority’s power to purchase purpose built or adapted accommodation for the family. This was particularly unfortunate because they had been asking for a transfer for about 2 years before making the application as homeless.
The major social care question around delay, which has been resolved in Scotland, (see the South Lanarkshire case, in relation to waiting lists for residential care) (but not in England), is whether budgetary shortage in a particular budget-holder’s coffers, or in a particular department within an authority, is a relevant consideration in relation to what is a reasonable time in which to discharge the duty. We think that once a duty has been triggered, treating the budget as relevant to performance is not lawful, because it downgrades the duty back into a mere discretion again. The South Lanarkshire case confirms that view, because it established that even if an authority in Scotland is forced by a lack of accommodation to run a legitimately ordered, risk-prioritised waiting list, it must still meet need in the meantime.
Bed-blocking and right to choose particular accommodation
Delays caused by social services (such as delaying assessments of NHS patients, until they are already fit for discharge from hospital, or through claiming to ration offers of places, according to a one in one out system, or budgetary quota) obviously bites on Trusts’ abilities in the field of bed management.
Whenever a rationing system has been challenged by way of legal action, the authorities concerned have quickly re-considered their budget situation and thus avoided a legal precedent which would be inconvenient to work with.
In early October 2001 the government announced an injection of cash to ease the pressure on local authorities, and allocated a chunk to those with the worst problems.
Some authorities have argued that it is just too bad when beds are blocked because the patients have been given a legal right to choose accommodation and if there is no place available, they have no choice but to wait in the hospital bed. However, this is a fallacy. The right to choose is subject to availability, and if there is no place available in the preferred choice of home, then the authority will owe a duty in any event to offer to commission a suitable alternative. It is not lawful to offer a place only in a local authority residential care home in such circumstances; the client has a right to choose a home in the private sector, if s/he wants to make a ‘second best’ choice, whilst waiting for the first preference to offer a place.
In exceptional cases, where the needs which must be met are genuinely specialist, the non-existence of an appropriate place to which the client might be persuaded to go, may be a good reason for an NHS facility turning down the pressure to vacate the hospital bed.