Public Authority status for the Human Rights legislation

Several recent decisions have explored whether local authorities’ resources may be considered in the exercise of certain service-related functions. They all turned upon whether the functions were duties or powers, and the line between the two is not straightforward.

 

Whilst the 1997 Gloucestershire case said resources were relevant (to eligibility criteria), most of the cases since have come to the opposite conclusion, because the judges have confined the Gloucestershire approach to the particular statutory function (and to the setting of eligibility criteria). Wherever a function has been identified as a duty rather than as a power, resources have been said to be legally irrelevant. In particular, the following functions have all been found to exclude reference to the state of the budget at that time.

  • the decisionwhetherto assess someone,
  • the duty toaccommodatesomeone found on assessment to be owed a duty under s.21 NAA and LAC 93/10,
  • the duty to make arrangements fordomiciliary supportfor someone found on assessment to be owed a duty under s.2 CSDPA,
  • the duty to continue the Care Plan delivery,pending lawful re-assessment,
  • and the question whether a particularadaptationis ‘necessary’ when the applicant otherwise qualifies for a Disabled Facilities Grant for mandatory purposes under the 1996 HCGRA.

 

The post-1997 cases below have all moved the law on from the standpoint taken in the Gloucestershire case about the relevance of resources for the discharge of local authority functions (particularly social services):

 

1996 Gloucestershire County Council (R.A.D.A.R)

1996 Lancashire CC (Ingham)

1997 Gloucestershire CC (Barry)

1997 Sefton MBC (Help the Aged)

1997 Haringey LBC (No.1) (Norton)

1997 Essex CC (Bucke)

1998 Haringey LBC (No.2) (Norton)

1998 Bristol CC (Penfold)

1998 East Sussex CC (Tandy)

1998 Birmingham CC (Taj Mohammed)

1998 Wigan MBC (Tammadge)

1999 North & East Devon HA (Coughlan)

1999 Birmingham CC (Killigrew)

2000 South Lanarkshire Council (MacGregor)

 

Resources and domiciliary services for the disabled

In Gloucestershire, in 1997, the Lords finally determined that resources may be relevant at various stages of decision-making regarding disabled persons ie in relation to eligibility criteria for service provision (under s.2 Chronically Sick and Disabled Persons Act 1970 (‘CSDPA’) for those regarded as the client group defined in s29 NAA 1948). The case established that

  • ‘needs’ which are to be met must be identified against criteria set with regard to authorities’ budgets;
  • the duty to make arrangements for services only arises when the authority is satisfied that its making the arrangements is ‘necessary’ to meet the identified need;
  • criteria for “satisfaction” as to that necessity may be altered, depending on the resources available.

 

Are resources relevant on the actual day of assessment of an individual?

 

We do not think so, and no case since has clarified the point.

 

The factual basis for the first instance decision in Gloucestershire was that Mr Barry’s and others’ services had been cut without any re-assessment, because funds were running out. Given that the first instance Court was prepared to find that such action was unlawful, it did not need to focus on the relevance of resources at any particular stage of the assessment process – no-one had re-assessed the service users. But of course the users were then re-assessed, with reference to resources, and that was why they were able to appeal, despite having won. In the Court of Appeal some of the judges focused on resources at the stage of identifying need; others on the question of their relevance at the stage of deciding whether a service package was ‘necessary’.

 

However, the Lords’ majority speeches dealt with the question of resources by reference to the legitimate setting of prior eligibility criteria, according to the budget, for both types of difficulty constituting a potential need and degrees of need. Tailoring the assessment decision as to whether someone specific should get a care package, or tailoring provision to what the budget will ‘stand’ on the day of an individual’s assessment (perhaps by a Panel or Service Manager’s re-interpretation of the criteria currently in place at that point), is not something that is authorised by Gloucestershire. The Lords focused on the distinct stages of identifying potential needs, and then making a provision decision, (in the sense of deciding whether a care package was necessary), and regarded those two stages together as the ‘assessment’. Lord Nicholls said that it was important to bear in mind that section 2 CSDPA contemplates THREE separate stages: the identification of need, the question of necessity for provision, and then the making of arrangements pursuant to the duty at the end of s.2. Neither of the reasoned majority judgments in the Lords, (allowing the authority’s appeal) suggested that it is lawful to take the precise state of the budget into account during individual assessment or at the moment of care planning. Both emphasised the need for eligibility criteria to be raised or lowered at Committee level, taking resources into account if necessary, before any re-assessment of need may lawfully occur and affect the service package.

 

The Gloucestershire case means that eligibility criteria are now a legitimate tool for rationing finite resources, and provide a means to treat everyone within an authority’s boundaries reasonably consistently. This was by no means a certainty; criteria are not mentioned in the legislation and the availability of resources has nothing to do with the existence of needs – in terms of logic or human experience, at least.

 

Various types of eligibility criteria seen around the country since the Gloucestershire case

  1. Authorities with no eligibility criteria at all: probably not illegal, but very poor administration in light of the Audit Commission’s and SSI’s exhortations.
  2. Eligibility criteria set unreasonably tightly, so that people obviously at risk do not qualify: illegal because of what was said inGloucestershireabout the need for reasonableness, in light of the overall statutory purpose.
  3. ‘Priority Groupings’ posing as eligibility criteria, but lacking any indication as to the trigger for the authority’s acceptance of the necessity for intervention by the authority: this is not what was envisaged inGloucestershire, and suggests that a panel or senior manager is informally moving the conditions required for qualifying for a package, on a periodic basis, according to resources. Such a person may or may not have been given delegated authority to do that but the Audit Commission and SS1 expect the formal criteria to be published. That would be pointless if they can be informally altered without anyone knowing.
  4. Clear eligibility criteria with a trigger point, but a panel or senior manager deciding what or how much actual service should be provided, according to the state of the budget at that particular time: contrary toGloucestershire, Seftonat first instance and Tammadge, which all say that the planning stage is a duty to make appropriate provision, and not subject to resources.
  5. Eligibility criteria tightened, and publicised, and applied, but not to existing users, to avoid provoking complaints. Probably not unlawful, but leads to inequitable differences in response, over time, as between users with similar needs, livingwithinL/A boundaries. As such it is inconsistent with the Lords’ view as to the purpose of eligibility criteria.

 

It is interesting to note that authorities are still wary of removing services from those who previously qualified; no doubt on the basis that people are much more likely to complain or litigate in such circumstances. But having different versions of criteria and applying them only to new users itself sets up a different kind of inequity which may lead to challenge – that of neighbours with similar conditions getting different packages, just because one of them was fortunate enough to deteriorate earlier, when money was less tight! It must also make for administrative nightmares, as more and more versions of the assessment tool come into existence.

 

Eligibility criteria for disabled clients cannot be so tight that they mean that those at risk of physical or mental harm would not qualify for intervention, and neither can they be set in a blanket way, ie “we never provide such and such a service”. The only legitimate basis of a complete refusal to provide is that the request is for something that no reasonable authority could possibly regard as constituting community care services, such as emergency surgery, or a PhD.

 

Unmet need – assessing and recording

In Gloucestershire, ‘unmet need’ finally received judicial attention. It need no longer be a matter for anxiety, for fear that acknowledging a need creates absolute liability to provide for it, such that unmet need is necessarily unlawful. Unmet “human” need may now be openly acknowledged to arise, in fact, but it will now be unlawful in only one situation. Unmet need outside the authority’s criteria will exist lawfully within what is contemplated by statute. It is only if a need has been acknowledged, as such, and the authority has also acknowledged that it must intervene to provide something, but then run out of money, or otherwise failed to meet need appropriately, that the need will be ‘unmet’ in both human and in legal terms, and also unlawful. If this clarification encourages recording of actual unmet need, then the planning process will eventually benefit. The whole idea of recording unmet human need is to encourage service responsiveness and strategic planning for the future.

 

Since it is unlikely that authorities will actually walk away from people who reject an offer of residential care, it may be attractive for authorities to develop their own set of principled exceptions to the norm of allocation to the most economically advantageous placement which will adequately meet need. In so doing, it should be possible to regard each exception made as turning on its own facts, and not setting any kind of precedent.

 

SUGGESTED PRINCIPLED EXCEPTIONS to placing in Residential Care, despite the higher cost of adequate Domiciliary Care

 

  1. Compassionate circumstances, e.g. terminal illness
  2. The client’s “wish” to stay at home actually is aneed, e.g. clinical or geriatric, so must be met
  3. Residential care is not truly appropriate e.g. the client is young, physically disabled, learning disabled, or with extremely challenging behaviour which puts others at risk
  4. The carer’s or client’swillingly volunteeredresources have reduced ‘necessity’ for a 24 hour L/A package to a level which the authority can bear to fund, in its discretion even though it may cost a bit more than residential care
  5. A fully mentally competent client’s views of their own strengths have reduced the perceived risk to a level which justifies recording less ‘need’ than was first envisaged, thus reducing the expense of keeping the person at home.

Resources and re-assessment

In ex p Killigrew an authority’s re-assessment of a user’s needs down from 12 hours a day to 6 was quashed because the re-assessment had not dealt with why services which had previously been thought to be needed were no longer needed. The user suffered from multiple sclerosis; she was also prone to unpredictable fitting, and had been attended for 12 continuous hours daily for some time under an old Care Plan. When manual handling obligations meant that she needed 2 lifters, rather than one, the authority purported to decide (without any change to the criteria of what could constitute a need or what needs necessitated intervention) that her ‘needs’ could from then on be met by 6 hours of attention rather than 12. Up-to-date medical input was said to be crucial by the judge, as were reasons for concluding that it was appropriate to leave this user without assistance despite her fitting.

 

This case shows that re-assessment downwards without a change in criteria to justify it is fraught with difficulty, unless there has been a change in the user’s factual circumstances which alters their dependency levels or some new innovation in treatment or equipment which genuinely lessens the need for services. If the authority had had the courage to say that the need for ‘company’ was no longer to be regarded as a need for a community care service, they could have at least tried to justify the reassessment against tighter criteria. But on the facts of this case, namely, marked deterioration, it would not have been possible, in our view.

 

Resources, residential accommodation and waiting lists

In Sefton, the Court of Appeal clarified that authorities are not entitled, because of their own finances, to defer compliance with their duty to accommodate certain persons, under s.21 National Assistance Act 1948 (‘NAA’) who qualify under the Authority’s criteria, pending the claimant’s resources falling below a threshold set by the authority. For some people this was good enough to suggest that waiting lists for residential or nursing care were unlawful, but because the client was actually safely in nursing care already, it has not been regarded as determinative of the wider point as to the legality of waiting lists for actual care or accommodation.

 

The s21 duty is to accommodate people who “are in need of care and attention which is not otherwise available” to them. The Court partly applied Gloucestershire, in the sense that it held that the authority may develop eligibility criteria for identifying ‘need’, based on its own resources. This is helpful in terms of budget control but it does not allow for much tightening without risking a finding of unreasonableness, given the type of client and degree of need which would generally be under consideration. Likewise, the point made above in relation to domiciliary care, regarding the inappropriateness of moving the trigger point in the criteria on a day-to-day basis, applies also to residential care criteria, in our view.

 

However, the Sefton court held that unless the authority concludes that the care thus identified as needed is ‘otherwise available’, the authority owes an absolute duty to provide the accommodation, regardless of its own resources. Here, Gloucestershire was distinguished; no duty to arrange a CSDPA service arises, even though a need is identified, until an authority decides it is ‘necessary’ for the authority to make arrangements to meet it. The outcome was different in relation to residential care because the section in question is worded differently.

 

Site visitors will appreciate that this finding as to the existence of the duty did not actually determine the legality of making someone who qualifies for this kind of service wait for a while, for scarcity reasons or even resources reasons. We would say that since those already assessed as being at this end of the scale of need are at the sharp end, reasonableness requires a very prompt discharge of the duty indeed, but this has not yet been tested in an English Court.

 

In Wigan MBC ex parte Tammadge the Court confirmed that resources are irrelevant to the implementation of the duty to accommodate once an assessment has been completed. However, this case did not determine the waiting list question either, because the real issue in the case was whether or not something counting as ‘an assessment’ had actually been finally completed. In that case the Court held that the Director was not entitled to ignore the Complaints Panel finding as to the client’s needs, once he had accepted those findings, without some very good reason. The Court also appears to have regarded the senior team manager’s assessment as binding on the Director, without analysing who had the delegated power to make the decision. It is crucial to note that no alternative to meet need, other than the one proposed for funding had ever been identified.

 

We think that the recent Scots case of MacGregor has finally determined the issue of the legality of residential care waiting lists. The judge’s approach was pretty well what we had predicted it would be – that it is unlawful, once the criteria for being “in need” have been triggered, for the authority to put someone on a waiting list and do nothing in the meantime. The judge held that somebody’s budget has got to be spent on some sort of service, in order to meet the assessed need.

 

The man in question (90, confused and agitated, deaf and in need of 24 hour care) had been told by South Lanarkshire Council that it might be 7-8 months before he would get funding, and his family placed him privately in a nursing home in the meantime, under protest.

 

We know that there will be authorities whose risk managers will say that this is a Scots case on different law and that it is still arguably lawful in England to have waiting lists. We do not think that reputable lawyers could agree. Although Scots law does not have a separate Act for residential care, as opposed to assessment, the Scots framework itself refers back to the 1948 National Assistance Act 1948 in which the English provision about residential care is found. The wording of the separate s21 NAA provision in English law, together with the Direction in LAC 93/10, is stronger than the more broadly discretionary approach in the 1968 legislation in Scotland. The English courts have already been persuaded that a duty to meet need is triggered, once care and attention are agreed to be needed and are not otherwise available (Sefton); secondly, that the actual provision duty to meet need must be discharged, regardless of a want of resources within a particular budget pot (Gloucestershire and Sefton); and thirdly, that in the relatively few areas where duties and not discretions have been imposed, the courts will not permit those duties to be downgraded into mere discretions by the back door (eg East Sussex).

 

See Residential Care and questions related to that topic regarding use of Panels for further discussion.

 

It is not all kinds of waiting list that would have to be seen as unlawful: there might be no place available in any given area within an appropriate distance of the user’s community and visitors; in those circumstances it would be unlikely that a Court would hold an authority to be in breach of the general public law duty to implement any decision within a reasonable time. It is crucial to note (see the Choice of Accommodation Guidance, 1992) that the mere fact that there is no vacancy at the authority’s proclaimed usual cost, is not an excuse for a waiting list or indeed, seeking a top-up from a third party.

 

Resources and adaptations

In Birmingham CC, ex p Taj Mohammed, the Court continued the ‘retreat’ from Gloucestershire, taking a very similar approach to the Lords in East Sussex to the effect that the money just had to be found from somewhere. Any authority aiming to work co-operatively with Housing authorities should consider the implications of this case for the interface between CSDPA aids and adaptations and Disabled Facilities Grants.

 

The question was whether resources were relevant to the decision whether or not to approve an application for a disabled facilities grant (‘DFG’) for one of the purposes which the relevant statute explicitly goes a long way towards making mandatory, by use of the words ‘must’ and ‘shall’ (s.23(1) Housing Grants, Construction and Regeneration Act 1996: ‘HGCRA’). The dispute arose because s.24(3) requires a further decision from the authority as to whether the relevant works are ‘necessary and appropriate’ to meet the needs of the applicant, after OT staff have advised as to those statutory criteria.

 

Dyson J. carefully examined the statutory history (grants for access and facilitation purposes had been the sole grants to be left in the mandatory category when the Act was last amended) and the express references in other parts of the statute to resources considerations. He found that once the purpose for which the application had been made had been acknowledged as coming within the mandatory category, then a statutory duty to provide the grant arose, subject only to the ‘necessary and appropriate’ test. That test was intended to focus on the ‘technical’ aspects of the proposed improvement, in his view, not the financial resources of the authority, or any rationing it was trying to do elsewhere, in the discretionary aspects of its functions.

 

In practice the OT staff advising the Housing Department are often without guidance as to the need to distinguish between whether they are wearing their CSDPA hats (under which, social services criteria would be lawful) or their s24 hats (in which case the old DoE guidance is what counts).

 

Leave a Reply

Your email address will not be published.