The words ‘eligibility criteria’ do not appear in any of the statutes relating to health care or community care services. Yet they are a standard tool used by every public authority for encouraging consistency of decision-making in similar cases, and for managing the budget notionally allocated to funding particular services, out of the total pot of money to which the authority has access.
The reason it is lawful (and we would suggest necessary) to have eligibility criteria in health and social care is that the statutes under which such services are provided in the first place out of public monies tend to divide services up into several different types of function, depending on their importance. At the high end of risk to physical or mental welfare, the law tends to impose statutory duties which must be performed, no matter what the state of the manager’s budget is at the particular moment. If absolute duties to provide, are triggered once particular individuals are deemed to be ‘in need’ of that help, it is obviously crucial for the authority’s financial position that the authority has a means of controlling the decision-making process around just who is or who is not ‘in need’.
The professional judgment (ie of consultants, in the NHS, or of care managers in community care) would be one such means of deciding eligibility, but we all know that such judgment is hard to control and its supremacy could lead to financial meltdown, bearing in mind that the amount of money available on a nationwide scale is not infinite.
Another means of controlling too broad a range of discretionary opinion on the part of professionals, and at the same time to ensure consistency across a geographical area of responsibility, is for the authority to set out, in public and in advance, an administrative and general statement of policy as to which sorts of problem will be regarded as sufficiently serious as to trigger the statutory entitlement to (or more often, the mere chance of) to services which Parliament has seen fit to lay down. Eligibility criteria are the product of this logic. In real life, a person’s ‘need’ does not depend on how much money he or she has to spend on themselves. They either have a need or they don’t. However, in practice, what they then do about their perceived need does depend on how much they have to spend, and the relative seriousness of the need, and the consequences of not meeting it, compared to other desirable things they could choose to spend their money on. But in real life, a person’s existing debts and obligations have to be budgeted for, first, otherwise there will be litigation…
For ‘desirable things’, in this analogy, one could read ‘discretions and target duties’ under statute; and for ‘debts and obligations’, one could just as well read ‘absolute and triggered duties’ under statute. Eligibility criteria in the health and social care field are used to tell one from the other.
One outcome of this intrusion of necessary rationing of services into assessment is that professional judgment within a statutory service is not the bottom line as to who gets what, no matter what the rhetoric of government might be. The professionals concerned are either engaged or employed or used as an objective indicator of a certain factual state of affairs, by the authority responsible for funding or arranging the services – and when asked for a professional opinion, it is their job to give an opinion on the facts, measured against the authority’s criteria, whatever their professional opinion might be about whether or not the person has a ‘need’, in the wider ‘human’ or medical context.
Fair Access to Care Services Guidance (in place for the last 10 years or so) allows for discretion in local authorities by reference to the meaning given locally, to words such as VITAL or THE MAJORITY OF…. A good authority would make it clear what they see as constituting a vital domestic routine, for instance, so that people could coherently prepare for assessment and assert a more person centred approach to what is vital to them, albeit that the council could still disagree – the council is the decision-maker as to the spending of public money, but may be challenged in judicial review proceeedings.
On the other hand, the fact that public authorities’ criteria (their wording and the way they are applied in practice) may be challenged by way of public law legal proceedings (judicial review) means that a public authority’s chances of getting away with ridiculously tight criteria, or a practice of never acknowledging that anyone actually meets the criteria, no matter how bad the situation, depend in the end on the integrity of the clinicians and care managers who would have to give evidence to the court about the likely consequences of that person being treated as not qualifying.
Since those persons are professionals, with (hopefully) a value base and a disciplined approach to their work, there is (still) a bulwark against pure managerialism being allowed to run wild, simply so that a budget can be met, whatever the consequences to clients and patients. A care manager who thinks that someone is just managing on 15 hours of care services a week ought not, in theory or in practice, to be able to be bullied into saying that now 3 hours will do just as well.
Eligibility criteria when associated with requests for services under the CSDPA are supposed to be about identifying incapacities which constitute needs which the authority is prepared to consider meeting. At the second level, criteria are supposed to reflect different levels of seriousness of need, enabling care managers to recognise situations in which the authority is prepared to accept that it is satisfied that it is necessary in order to meet the assessed needs for the authority to make arrangements for certain services.
There is no legal reason why authorities should maintain only one pair of criteria for the whole range of community care services. It might make very good sense to have separate criteria for access to services under the 1968 Health Services and Public Health Act for instance, because it only covers the older persons who are not also disabled.
But FACS guidance assumed that the national approach would be applied to all of the provision functions owed under the full range of the community care legislation, including that Act. And the Law Commission’s recommendations regarding the draft Care and Support Bill envisage doing away wiht all the bits of different legislation and JUST using something like the FACS bands for determining eligibility…
Consideration of eligibility for residential or nursing care together with accommodation might have been argued to compel differently worded criteria because the Sefton case has held that the user’s own financial resources are legally relevant to whether they have care and attention otherwise available to them; whereas the position for welfare services and the services under the CSDPA would appear to be (under government guidance, at least) that the user’s own financial resources are not legally relevant to the question of necessity for the authority’s making of arrangements.
A further reason why different criteria would make more sense, albeit that using them might perhaps be administratively unmanageable, is that under the CSDPA, attention is required by the statute itself to be given to the question of the user’s greater ‘comfort or convenience’. Criteria for access to the full raft of purely discretionary community care services, if based wholly on risk to autonomy, would appear to exclude reference to those two concepts. Whilst it may not be necessary in law to provide someone a service for their greater comfort, it has been held to be unlawful to do a CSDPA assessment without thinking about it, because it is referred to in the statute itself – see Norton No. 1.
Putting People First – revised Fair Access Guidance to shape and modernise the interpretation of eligibility criteria
In February 2010 the Department of Health issued fresh guidance on the use of eligibility criteria for determining access to adult social care provision. This guidance, entitled “Prioritising need in the context of Putting People First: A whole system approach to eligibility for social care Guidance on Eligibility Criteria for Adult Social Care”, replaced the FACS guidance originally issued in February 2003. It has been issued under s7(1) of LASSA 1970 and therefore must be followed unless there are cogent reasons for not doing so.
The new guidance seeks to put the rationing of adult social care provision into a broader context and in line with the shift in policy towards providing greater choice and control for individual service users over how adult social care needs are met. So as to assist with this, the guidance details the obligations owed by local authorities in related legislation towards those who may require adult social care or who have taken on a caring role for someone who does.
The guidance then proceeds to advise on the benefits of ensuring suitable services are in place to enable early intervention. It is worth highlighting that the guidance does not require local authorities to put in place preventative strategies, but rather they are strongly encouraged to do so on the basis that universally available services, such as providing information, effective signposting to appropriate assistance and targeted intervention, maximises independence and reduces the need for social care provision for unmet need.
Local authorities are empowered presently to provide such services either through the well-being powers set out in s2 of the Local Government Act 2000, the existing social care legislation but without regard to assessment of individuals, or simply through commissioning of advice and information services under statutory social care or grant giving functions, depending on whether the providers are commercial or voluntary sector organisations.
The guidance also extols the virtues of joint working and integrated services across both the statutory and voluntary sectors, suggesting that local authorities ‘make available their community-wide strategy for prevention and early intervention’ and within such strategies, that they should address the issues as identified by the guidance.
Re-ablement and immediate care services – under what powers?
The guidance suggests that, prior to carrying out an assessment to ascertain an individual’s eligibility for social care, local authorities consider whether “a short period of re-ablement or intermediate care to increase what they are able to do for themselves” should be offered. Whilst the guidance does not give individuals an enforceable right to intermediate care from a local authority (because that could only flow from a duty to provide it to particular people, and no such duty exists) a complete lack of such provision by the local authority could potentially be challenged, particularly as schedule 20 NHSA provides a local authority the power to make arrangements for the prevention, care and aftercare of those suffering from illness. It would appear local authorities are expected to routinely consider intermediate provision prior to a community care service, however little attention has been given to the legal power for the spending of public money on such services and the guidance does not offer assistance to local authorities as to how to operate such a service. The Department of Health has not set out the statutory framework which would underpin this provision or offered any indication how this would fit into the current legal framework for community care provision, so in the absence of this the author suggests that it could fall into either provision from the NHS in compliance with their duties under s1 and s3 NHSA or by local authorities under the powers conferred by schedule 20 NHSA or s2 LGA.
Intermediate care as it was first discussed was a euphemism in the early 2000s for NHS provision (ie step-down beds and hospital admission prevention beds or crisis intervention services), not social care. That much was clear from the fact that no charges could be levied for it, if it was to serve the purpose of helping the minimisation of bed-blocking, waiting lists etc.
In circumstances where an individual is referred for community care services by NHS staff via the delayed discharge procedure or following a negative reassessment of NHS continuing healthcare entitlement there is scope within the current legal framework for any re-ablement service to be provided and funded by the NHS. In these circumstances the PCT would control the assessment and monitor provision. Similarly if the provision of services are necessary to prevent a person from entering hospital then the duty might fall on the NHS. This is alluded to within paragraph 63 of the guidance. Unfortunately the guidance does not provide clarity as to what would constitute a ‘health element’ so as to require NHS contribution to such services. Given this lack of clarity it would be prudent for local authorities and PCTs to work together to agree where the cross over for responsibility should lie. Clearly where a person has health needs which would qualify for NHS continuing healthcare then any re-ablement package would be provided via the NHS Act 2006, but (as set out later) the NHS legislative framework does allow PCTs to have an input into re-ablement services to those with lower level health needs.
In circumstances where the NHS is not involved it is likely to fall to the local authority to fund the procurement of any such services. It can be done under schedule 20 NHS Act by local authorities as a community care service, even without assessment of individuals preceding its provision. It could then be charged for after the first 6 weeks. If it were to be provided as a community care service but prior to assessment, there is no right to a direct payment in lieu of it, for such rights follow only on assessment of eligibility for community care services.
We would suggest that it would also be lawful for local authorities to decide that re-ablement and intermediate care services would enhance the well-being of their area and therefore provide funding or make contractual arrangements with commercial or voluntary agencies to put in place such services under the powers conferred by s2 of the Local Government Act 2000.
If, as the guidance suggests, re-ablement services might be accessed under well-being powers, instead of from the community care legal framework, the local authority could appoint private and voluntary sector providers to allocate services to people – the council cannot delegate responsibility for statutory decision-making in relation to assessments under s47 of the NHSCCA 1990 or provision under community care legislation, but it could do so for services under the Local Government Act.
The role of the local authority would then be likely to be limited to designing the service, setting informal eligibility criteria so as to achieve the policy aims set out with the ‘Putting People First’ guidance and making referrals to the service. The provider agency would be responsible for completing any person-specific assessment according to the informal criteria and service goals, devising an intermediate/re-ablement care plan and providing any services as required. If these services are to remain outside the current community care framework then it must be clear on the face of any referral that the local authority is not thereby purchasing a service from the provider agency to meet a community care need.
One consequence of the legal source of power for re-ablement services, is that local authorities will not be entitled to recover charges from individuals under HASSASSA 1983 / Fairer Charging guidance for the provision of LGA s2 authorised re-ablement or intermediate care services, although they could charge under the Local Government Act itself, so long as they do not make a profit.
Care will also need to be taken following completion of any period of re-ablement that a follow-up report to the local authority amounts to nothing more than a referral, if necessary, for a full community care assessment. If the report contains any recommendations by the provider in respect of on-going social care needs these can not bind the local authority, because this is a decision to be made only by the local authority, under the present law.
It is advisable for local authorities and PCTs to make arrangements to jointly fund such services, given that the provision should benefit both the local authority and the PCT. There is scope under s75 to make partnership agreements cross delegating the aftercare and prevention functions and under s275 of the NHS Act 2006 for the PCT to subsidise the cost to the local authority for the provision and it would be prudent for local authorities and PCTs to consider now as part of their Joint Strategic Needs Assessments what the levels of contribution by each body should be.
Setting the Eligibility Criteria
The Guidance sets out the eligibility framework that should be used by local authorities to specify their criteria for the provision of formal community care services under the National Assistance Act 1948, Health Services and Public Health Act 1968, Chronically Sick and Disabled Persons Act 1970, National Health Service Act 2006, s117 Mental Health Act 1983 and Carers and Disabled Children Act 2000. The guidance makes no comment on the Law Commission’s recent reform proposal which commented to the effect that the internal criteria set out within the individual legislation cannot take precedence over the legislation, so that, for example, this guidance would have little effect on the provision of services under s.21 of the National Assistance Act 1948 – care and attention either are or are not otherwise available to a person, regardless of whether the risks they face are critical or substantial or anything else. The guidance makes clear that local authorities must set their own threshold in accordance with their resources, local expectations and costs, provided this is done by reference to this framework – but it mentions for the first time that authorities might like to set their own criteria, as long as it conforms with the guidance too. It is very much to be hoped that no council decides to take what would be a retrograde step away from national consistency of approach to eligibility, as far as this author is concerned.
Further the guidance suggests local authorities should consult users on the decisions to implement changes to eligibility criteria. Perhaps the author of the guidance thought that guidance from government would automatically be followed but whether or not that was the case, the duties set out within s49A of the Disability Discrimination Act require service user involvement as was made clear in R (Chavda) v LB Harrow  EWHC 3064 (Admin). From the 06.04.11 s149 Equality Act 2010 will be in force and supersede this duty. It largely replicates the s49A duty but new regulations and guidance have been published setting out the information public sector bodies will be required to publish so as to demonstrate that they have compiled with this duty.
At paragraph 55 the guidance suggests that it would be appropriate for local authorities to ‘prioritise needs that have immediate and longer-term critical consequences for independence and well-being ahead of needs with substantial consequences. Similarly, needs that have substantial consequences should be placed before needs with moderate consequences and so on.’
This analysis has been copied over from the previous guidance, but may not accurately reflect the legal position. In R v. Gloucestershire C.C. and the Secretary of State for Health, ex parte Barry (1997) the House of Lords made clear that local authorities were obliged to meet any and all eligible need above the threshold set. Above the line there is a duty to meet need; below the line, there is not. A concept of mere priorities for risks above the line, therefore, is not justified or underpinned by the legal framework. It is no clearer from this guidance than it was from the last, where the supposed legal authority for this shift towards prioritising eligible needs has come from. A duty is a duty, and must be discharged, is what the courts tend to say, whenever seized of such issues.
The guidance also places great importance on the correct approach for considering need. It is clear that the decision maker is expected only to consider the size, or immediacy or severity of risk to independence and well-being across various domains (as described for each of the four bands) when determining a person’s eligibility, rather than focus on the type of service that would then follow. The guidance is categorical that there is no such thing as a hierarchy of types of need, other than for life threatening circumstances and serious safeguarding concerns. Instead the guidance advises councils that decisions must be made in the context of a human rights approach focusing on dignity and respect, given the ambiguity of some of the triggers in the descriptors, such as ‘vital’ ‘partial’ and ‘the majority’.
This suggests that the Department of Health expect local authorities to pay more heed than perhaps they have in the past to education, society, work and family related aspirations of those with social care needs rather than concentrate only on meeting safeguarding, physical or personal care needs. If local authorities are to comply with this aspiration some may find they need to re-evaluate whether their current resource allocation systems adequately allow for resources to be scored according to the importance placed by the service user on that need being met, because most RA schemes provide for weighting of points, in terms of pounds, for specific types of need – regardless of what the client thinks matters most.
The guidance advises against local authorities adopting policies which adhere too rigidly to defined client groups, as that does not accord with reality or the legal framework. It strictly prohibits any practice which denies assessments or provision to those on the autistic spectrum with high IQs simply because they do not have learning disabilities. It also underlines that, whilst specialist provision will exist to meet the needs of those with complex care needs (such as mental health and learning disability services), those with such needs should not be denied access to mainstream services. In practice this means that where an individual who has mental health needs or learning disabilities is assessed not to have sufficiently high needs to access the specialist services, they should still be able to access an assessment and, if eligible, services under mainstream community care provision.
The guidance explicitly states that any assessments which signpost individuals for re-ablement and intermediate services rather than community care provision must be conducted by staff who are “sufficiently trained and equipped to make the appropriate judgements” (implicitly, one might ask, to defer or refuse an assessment for community care services?) Unfortunately there is no clear indication within the guidance (other than advice to follow the training materials and practice guide issued by the Social Care Institute for Excellence) as to what level of training would be expected: it is important to remember however that the local authority retains the absolute duty enshrined in s47 NHSCCA to carry out community care assessments where someone may be in need of services. Therefore both the guidance and case law make clear a local authority must ensure that those charged with initial assessments have the requisite skills, knowledge and time to competently assess an individual’s needs before determining whether to signpost to another service, offer a full community care assessment or put in place interim community care provision whilst completing a full assessment. The guidance highlights the benefits of getting the initial response right and the negative consequences of prematurely ‘screening out’ an individual in need of services.
The s47 duty to assess is not restricted to where there is a duty to provide community care services and, as the guidance makes explicitly clear, a person’s financial situation can not have any bearing on whether they are entitled to an assessment or the depth of investigation that such an assessment entails (see paragraph 71). Therefore, at the very least, those conducting assessments must have a comprehensive and up-to-date knowledge of the extent of community care services, and principles by which a person may be found eligible, including this guidance and also the competence to ensure that they have gathered sufficient information as to the individual’s needs, input of any carer and, if appropriate, the carer’s ability to sustain their role – for without these elements, the outcome could not feasibly be regarded as ‘an assessment’.
In undertaking an assessment the guidance advises local authorities to adopt a ‘collaborative process’; one that is based on the individual being fully informed of the assessment process, assisted to identify and articulate the available options and outcomes they wish to see achieved (including where necessary access to advocates, interpreters etc.) and to understand the basis for the local authority’s final decision. In this regard the guidance reflects the duties set out in the Community Care Assessment Directions 2004 to consult the individual or (where appropriate) their carer, and to take all reasonable steps to reach agreement as to the support which will be provided and to provide information as to the likely costs. R (on the application of B) v Cornwall County Council & Brandon Trust (2009) highlights the importance placed by the Courts on the duties set out within the 2004 directions, particularly in respect of the duty to consult with relevant parties and the adequacy of a care/support plan for the adequate accountability of the authority for the subsequent arrangements for meeting need.
The guidance supports the use of ‘self’ assessment, but confirms that it is not lawful for local authorities to rely solely on information provided by self-assessment either in terms of an initial screening assessment, or to meet the requirements of a full community care assessment. It also recommends that, subject to data protection rules, assessments are co-ordinated across local agencies relevant to the individual concerned.
The guidance confirms that the assessment process must be Person Centred. There are frequent references within the guidance to the need for agreeing the person’s needs so far as is possible with the client or their representative. As a consequence it should be possible for individuals within reason (eg not in the Mental Health context) to limit the identification of needs to those which matter to them – but of course they cannot have it both ways and both assert the unimportance of certain needs, and yet still be funded through a budget to have them met, so that they can spend the money on something else, at one and the same time.
The local authority must remain mindful of their overarching responsibility to safeguard vulnerable adults; therefore in any assessment the local authority must address all safeguarding issues and be fully satisfied that any decision complies in full not only with their duties under community care legislation but also under the Human Rights Act and ‘No Secrets’ guidance. Safeguarding will be of less relevance where there are no doubts about the person’s mental capacity, but the duty to provide appropriate safe and lawful arrangements to meet care needs exists regardless of the mental capacity of the client, and cannot be bargained away by reference to choice or convenience, even with a fully capacitated client, in our view. Whilst it is easier to ascertain the wishes of someone with full capacity and to judge whether treating these preferences and views as valid would be consistent with the local authority’s duties, the guidance also frequently emphasises the obligations as set out within the Mental Capacity Act 2005. Effectively, the less capacity a person has in the issue specific context of insight into their own situation, the less likely it is that a care manager will be to accept the person’s own views on needs or on what would be appropriate to meet the need, as determinative of the authority’s statutory assessment. That said, however, the guidance confirms that it is entirely proper, even if in some cases it proves very difficult in practice, for local authorities to take into account the wishes of someone with impaired capacity, or their best interests consultee under the Mental Capacity Act 2005, to determine how best to meet the needs identified by the council.
The new guidance differs from its predecessor FACS in advocating the provision of support for ‘other’ presenting needs even if they are not eligible, if this can be done either as a consequence of or for the facilitation of the meeting of the eligible ones. This introduces a notion of how people may be able to be funded to meet ‘wants’ as well as needs, or argue for these other things to be needs, in the first place, and makes sense in the context of greater personalisation of social care provision.
We believe it is important that local authority remain careful not to blur the distinction, still evident within the Guidance, between ‘presenting needs’ and those assessed as ‘eligible needs’. Initially it would appear that there are no requirements to meet presenting needs, however the guidance does encourage local authorities to work with individuals to identify outcomes they wish to achieve and identify where ‘unmet needs’ are preventing the realisation of such outcomes. This could be taken to suggest that there is a duty to then meet these unmet needs irrespective of whether they have been assessed as eligible. The guidance, at paragraph 55, reinforces this point, setting out that needs should be met in a way that supports the individual’s aspirations including putting in place provision to meet presenting needs if this facilitates the eligible need being met. It is possible that the guidance is paving the way for greater flexibility in the way in which individuals will be able to determine how to meet their needs through increased personalisation of the adult social care provision, but it isn’t clear that this is related to the actual current legislative framework.
Under the personalisation agenda an individual allocated a personal budget may wish to use this to meet a presenting need they determine is more important to them than one that has been assessed as eligible for services. In such circumstances local authorities need to be mindful that the law requires all eligible needs to be met and direct payment law requires the spending of the money on the services set out in the support plan. This guidance does not authorise contravening this legal obligation. Whilst it is permissible to allocate additional sums to meet presenting needs associated with eligible needs, it is not permissible to ignore the positive misuse of public funds by individual service users or their ‘suitable person’. Under personalisation the local authority is responsible for ensuring that the payments made are used to meet the requirements as set out in the care/support plan. This care/support plan will only be lawful if it meets all eligible needs. Where however an individual is able to demonstrate that a presenting need would, if unmet, escalate or impede the provision in place to meet other eligible needs, the guidance would now give more weight to any argument that the local authority should treat this as an eligible need in its own right.
Provision for Carers
Throughout the guidance the importance of a carer’s role is stressed. It is noteworthy that, at paragraph 94, the guidance advises local authorities to record on any care plan all needs even where a carer is currently ‘willing and able to offer’ continued long-term support to meet the need. It will not be unmet need, eligible for funding, by way of a budget, but it will be recorded as a need, in case the carer ceases to be able or willing, perhaps. This underlines the importance of a thorough assessment which must include proper consideration as to what the carer does and to the sustainability of the carer’s role. The emphasis within the guidance of the requirement for carers’ involvement within the assessment process, as required by the 2004 directions, and their entitlements to an assessment of their needs as carers, is likely to further empower those undertaking a caring role – but only if they appreciate that the local eligibility threshold and the authority’s attitude to which setting to offer services in, will ultimately govern what happens if they cease to provide informal free care to meet the otherwise unmet need.
The guidance highlights that a risk to the sustainability of a caring role might trigger a duty to consider whether the local authority should exercise their power to provide services to the carer so as to sustain the provision, or alternatively put in place services to the individual who would likely otherwise be in critical need. It also suggests that ‘Councils may also wish to consider whether providing support to the carer(s) would reduce the need for more intensive interventions.’ This includes a reminder that local authorities are able to provide flexible support to carers to ensure the sustainability of their caring role. So assisting carers with day to day activities not necessarily related to their caring role, such as their own house work, is permissible and encouraged and able to be funded with a Carer’s direct payment.
Although it is not set out within ‘Putting People First’, recently revised guidance on ordinary residence specifies that it is for the local authority where the cared for person is ordinarily resident to make available provision rather, than the local authority where the carer ordinarily resides.
Commissioning and support planning
The guidance is very clear that once a person is assessed as having an unmet eligible need the local authority is under a duty to meet this need.
The individual’s ability to pay charges must only be undertaken once they are assessed as having an eligible need. Only voluntarily disclosed assets should therefore ever be considered as relevant to whether the person is offering to meet their own needs themselves, so that a discussion about the authority’s policy on disability related expenditure and its likely effect on the ultimate charging assessment could be conducted.
We would add that where a person voluntarily and with capacity (or through someone with lawful authority to act for their welfare and spend their money) chooses to meet their own needs through their own spending, of course the local authority can regard the need as not one that it is necessary for it to meet, and thus ‘refuse’ services in that way as well. That is the basis on which Independent Living Fund [‘ILF’] funds the bottom slice of a person’s service needs, leaving the local authority with the top slice, albeit that eligible need for that top slice is, ironically, a minimum condition precedent for the eligibility for ILF in the first place.
This financial assessment should be conducted promptly and information on how the charges are calculated communicated to the individual. The guidance makes clear that it is only possible to refuse services on the basis that the person can pay for them him or herself where they have been assessed as requiring residential accommodation and they, or someone close to them, are able to make the arrangements.
The Guidance expects local authorities to provide written reasons for any decision for refusing or withdrawing support
Whilst public law requirements for procedural fairness mean local authorities should have long been complying with this requirement, an express statement contained in paragraph 106 within this guidance is likely to improve accountability, as it should make challenges through the judicial review procedure easier.
Para 106 of the guidance says:
‘Where councils do not offer direct help following assessment, or where they feel able to withdraw the provision of support following review, they should put the reasons for such decisions in writing, and make a written record available to the individual. Councils should tell individuals who are found ineligible for help that they should come back if their circumstances change, at which point their needs may be re-assessed. A contact number in the council should be given’.
The guidance also sets out that it expects individuals who do not qualify for services to be offered appropriate signposting to other services, as well as provided with information on the complaints system, assistance with person-centred support planning and an open door, if needs do change.
Within paragraph 109 there is clear authorisation for continuing to provide services even where the needs are below the eligibility threshold in circumstances where withdrawing support would exacerbate need, such as to render the removal of services unsafe or impractical. It also warns local authorities to be wary of withdrawing support if previously they may have indicated support would have continued to be available for a set period so as to have given the individual or their carer the legitimate expectation of continuance.
The guidance sets out what information local authorities are expected to record within the support plans of those it does intend to provide services to. This includes:
• A note of the eligible needs identified during assessment;
• Agreed outcomes and how support will be organised to meet those outcomes (ie the arrangements if not the actual services);
• A risk assessment including any actions to be taken to manage identified risks;
• Contingency plans to manage emergency changes;
• Any financial contributions the individual is assessed to pay;
• Support which carers and others are willing and able to provide;
• Support to be provided to address needs identified through the carer’s assessment, where appropriate; and
• A review date.
Having said all that, the thrust and direction of the description of degrees of need across domains relevant to independent living, have not changed from the original Fair Access to Care Services Guidance:
Critical needs/risks to independence – if no social services are provided – it’s whenever – if nothing is done about it – the person’s situation poses a risk that …
- lifeis, or will be, threatened; and/or
- significanthealth problems have developed or will develop; and/or
- there is, or will be,little or nochoice and control over vital aspects of the immediate environment; and/or
- seriousabuse or neglect has occurred or will occur; and/or
- there is, or will be, an inability to carry outvitalpersonal care or domestic routines; and/or
- vitalinvolvement in work, education or learning cannot or will not be
- vitalsocial support systems and relationships cannot or will not be sustained; and/or
- vitalfamily and other social roles and responsibilities cannot or will not be undertaken.
Substantial needs/risk to independence – it’s when – if nothing is done about it – the situation poses a risk that
- there is, or will be,only partial choice and controlover the immediate environment; and/or
- abuseor neglect has occurred or will occur; and/or
- there is, or will be, an inability to carry outthemajority of personal care or domestic routines; and/or
- involvement inmanyaspects of work, education or learning cannot or will not be sustained; and/or
- themajorityof social support systems and relationships cannot or will not be sustained; and/or
- themajorityof family and other social roles and responsibilities cannot or will not be undertaken.
Litigation in the field of eligibility criteria has been fast and furious since Personalisation coincided rather unfortunately with the credit crunch in 2009. Councils started all over again, then, to consider the impact of raising their thresholds. Harrow, Birmingham, and the Isle of Wight, have all been successfully judicially reviewed for not doing proper consultation before hiking the threshold, and in the Isle of Wight’s case, for not understanding the guidance properly, and trying to treat the descriptors as hierarchically arranged, with freedom to draw their own line in the middle of a FACS band on the basis of their local aims and priorities. In the Isle of Wight case a large projectc to re-assess everyone affected led to a tiny number of people actually being denied a service they’d previously had, and this is an object lesson about how one’s social work staff will inevitably stretch the boundaries rather than make people suffer, against their own social work value base, at least.