“You can’t have an assessment – you couldn’t possibly qualify!”

Whenever money and staffing are thin on the ground, rationing of assessment always starts up, in one guise or another.

In some places, the start of assessment is deferred because sign-posting to preventive inputs of one sort of another, sequentially, puts off the day when the client’s formal assessment MUST finally start, all other ideas having been tried.

In other places, assessment lasts forever, because of all the thinking that has to go on, to make the assessment person-centred, to get advocacy sorted out, and to ensure that the right member of staff with the right sort of competence in the person’s problem is found.

In other places, barriers to assessment are made up and become embedded, and people just believe they are lawful reasons for saying no.

Examples are

  • You aren’t unwell enough yet, to have an assessment for mental health services – you’re not severely or enduringly mentally unwell enough…(that’s a reference to a threshold for NHS services for mentally unwell people, not a CARE ACT service!)
  • You haven’t got a significant enough learning disability to ‘count’ as a person with learning disabilities – your IQ is around 70, so sorry, but no….(that sort of an approach may well be justified for deciding whether assessment has to be specialist or one that could be done by anyone used to working with socially vulnerable people, but not as a reason for refusing assessment altogether!)
  • You haven’t had enough falls to qualify for care home or nursing home services, so there is no point in being assessed yet. (That is just plain ridiculous, and one is not any longer ever assessed for a specific service, so it’s misguided in legal terms as well!)
  • You sound as if you only need shopping and cleaning, and we don’t do those things any longer, so there’s no point in being assessed. (It’s not legal to read the eligibility regulations in such a way as to exclude obvious types of assistance like this even if commissioners only want to do it as a last resort – there will always be someone that the council IS doing this for, out of necessity, so it’s disingenuous to say ‘We DON’T…’

In all cases, the idea driving the rationing of assessment is the legal truth that a legal duty to meet needs only arises AFTER an assessment.

Up til then, there’s a duty to identify available preventative services, and a power to switch on what’s called re-ablement for those suited to it, and equipment services if they will help, but no duty to provide any specific amount of anything. So, the logic goes, if one can put off the moment of truth – the end of an assessment – at which point an eligibility decision has to be made, and next, spending money on meeting those eligible unmet needs, it makes sense to any budget-strapped council, to ration assessment.

All of the above ways have been in use since the 1990s. But they are not lawful, for one reason or another.

In 1997, a woman called Mrs Penfold brought judicial review proceedings against Bristol City Council for refusing an assessment on the footing that the staff thought that since the Gloucestershire case allowed rationing, in some sense, of services on account of a tightening of resources, the same principle must apply for assessment itself.

Wrong, the judge said. Assessment is framed as a duty, and is a virtual right, triggered by a very low threshold with regard to the facts about one’s situation : the mere appearance of needs – for really any sort of care and support that one can think of – and not merely an appearance of the type of needs that one’s story raises a good strong basis in fact.

Pre-empting this consideration, with the judgement that one wouldn’t possibly qualify is putting the cart before the horse.

Assessment is a useful tool in its own right, and everyone, rich or poor, should be able to benefit from it.

It was wrong in principle, and an error of law, to think that the law then permitted this important duty to be downgraded into a discretion by reference to the legally irrelevant consideration of the state of the budget at the time.

So suspending assessment in the third quarter of the financial year is simply not open to any local authority!! Allowing a culture to grow up whereby people are deterred from assessment on the basis of how they look or sound, just won’t do.

Assessment is the process whereby professional evaluation and comparison of people’s situations and needs and own perceptions of the impact they are sustaining concerning their difficulties, are filtered through eligibility criteria set by Regulations under the Care Act, so as to enable an authority to identify just enough ‘needy enough’ needs which survive that filtering process, so as to be able to manage everyone’s needs without running out of money.   That doesn’t mean that assessment itself is able to be rationed.

Ever since the Gloucestershire case, in 1997,  the law has been that once a duty to do x, y or z, has actually arisen, a lack of resources is legally irrelevant to doing that duty. It’s not an excuse for not doing it, in other words. 

Nothing in the Care Act has changed that position, we are happy to say.

It’s never been legal to limit the scope of entitlement to assessment by erecting false non-statutory hurdles making it harder to get into the system – assessment is able to be deferred whilst a person willingly takes up a prevention suggestion, but it cannot be denied to someone who on the face of it, clearly has some needs for care and support, even if they aren’t ones that would be likely to be eligible.

In order to avoid having to assess EVERYONE just because someone wants a blue badge, for instance, for disabled parking, councils are required to run advice and information services, and it is in that context – if these services were astute and well informed enough – that one could sometimes be told the advantages of NOT asking for assessment, and instead, heading straight off to the blue badge window down the hall.

Inviting someone to take the shorter route to something, is helpful; checking out that a person knows that if they have over a certain amount of capital saved up, it won’t necessarily save them any money to have services organised through the council, is also allowed. But inviting someone to do that if they obviously lack capacity is more problematic, and refusing someone an assessment on the footing that they don’t ‘sound’, ‘look’ or appear as of the’d be likely to qualify, is a complete No No, in public law terms, under the Care Act.

The answer to this question of course, is not the answer to what then COUNTS as an assessment, if it is accepted that most people deserve one.

The bare minimum of an assessment must include a decision regarding the domains in the eligibility criteria, and one on consequential significant impact of those inabilities to achieve, on that person’s well-being.  But that question has not come before the courts as yet. It stands to reason though, that if one tried to do it with a piece of litmus paper or a thermometer, or by throwing the files down the stairs as a useful screening tool, or by using people with no background in talking to people about sensitive things, a judge would not let that sort of approach suffice.

That’s what judicial review is for.




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