Antoniak v Westminster City Council

Well, goodness me, what a Happy New Year! A council finally got successfully judicially reviewed for failing to follow the Act and statutory guidance with regard to ignoring human assistance in meeting identified needs (it also managed to fail to follow the logic of its own forms, incidentally!).

In Antoniak v Westminster City Council, the claimant was a young man with intermittent psychosis and related housing issues, who’d also been run over, hospitalised for a long time, and was now wheelchair bound.

He was ultimately temporarily housed under the Housing Act, physically within another London borough, once his immigration status had been clarified and permitted recourse to that legislation.

Using what was no doubt a strengths-based approach, the assessor fell into the trap of suggesting that resources to which he had current access, were such as to reduce the impact of his inabilities on his wellbeing, so that he was ineligible for support.

That is not the law.

If one’s assessment has been formally paused to see what prevention and reduction can do for reducing impact or inability in a long term reliable way, that is one thing, and is permitted.

But if one’s eligibility falls to be determined at any particular date, that can only be after one’s NEEDS have been identified and gathered in, and the Guidance is clear that human assistance must be ignored at that point, for the purposes of the next decision in the statutory linear approach to assessment: ie the inability to achieve test, and the impact test, for eligibility purposes.

He was found by his assessor to be unable to achieve in two or more domains, but the impact was not regarded as significant, because it either was being met or ‘could’ be met, if he moved, by charitable resources.

Oh dear!!

The assessor had said ‘he currently has no needs in this area’ (referring to support with cleaning and maintenance, and meal preparation) because he could get them met by charitable support and they were being met currently because of the nature of the accommodation he was then IN.

The council did NOT say that he was eligible but that nothing was needed, because of what could be obtained locally. If it had said THAT, that might have been defensible, but of course the care manager would still have had to have done a care plan, because that follows on unavoidably from a finding of eligibility. That plan would not have been able to be signed off unless the council was sure that the services they were signposting too, just hopefully like, would actually meet the need.

In the judgment, a Mr Ockleton, sitting as a judge of the High Court, said this:

24. …it is clear both from the structure of the Act itself and from assumptions which might be made about the general utility of the assessment process, that the word “needs” is to be interpreted in such a way as to ignore any existing way in which needs are being met.

…Part 1 of the Care Act makes the individual, and the individual’s wellbeing, the starting point of the delivery of such services as are required. In this context it would be surprising if a needs assessment were not also intended to be primarily about the individual, rather than merely about some residuary part of an individual’s needs that were not currently being met…

…It follows that a needs assessment will not fulfil the requirements of s.9 if it does not include all the individual’s needs, whether currently being met or not. It follows also that the determination of the eligibility criteria will not fulfil the requirements of s.13 unless the eligibility of needs currently being met is determined, as well as the eligibility of unmet needs.”

…[since] “the question of impact on his wellbeing should have been made without regard to the way in which needs were being met at the date of the assessment”, the judge thought that the appropriate remedy was a declaration that the assessment did not discharge the defendant’s duties to the claimant under sections 9 and 13.

The judge refused to make a mandatory order compelling the defendant to draw up a Care and Support Plan and to provide the claimant with care and support forthwith because there was, in light of the judgment, no valid needs assessment, and a Care and Support Plan emerges out of the identification of eligible needs following a needs assessment.

He also acknowledged that Westminster may not have then have owed any duty to the claimant under the Care Act, because of his having been housed in Islington – the law is clear that the liability for Care Act needs moves with the client, even if the accommodation provided under the Housing Act is temporary. The invalidity of the prior assessment still mattered though, because of the provisions in s37, relating to those with care needs who move between local authorities.

Points for councils doing a Three Conversations or Strengths-Based approach

It’s public law that you want to think about, in light of this case.

You wouldn’t want your whole assessment workload to have be re-done, all over again, we are surmising – but that is what invalid assessments, once judicially reviewed, IMPLY. And there is now a right to restitution for periods of invalidly assessed needs!

That means money will have to be paid and will reduce all the savings that interim management consultants will have attracted high salaries for promising, by institutionalising go-slows, informal conversations about needs, and strategies based on persuading people or carers that there’s no real point in being assessed…. that is, a kind of rule of law karma, it seems to us.

The Care Act made the identification of needs, and then their status in relation to the eligibility threshold, and then care planning for meeting them, an essentially linear task, although the vision was that social workers and other staff would be well enough trained to be able to do generic and whole-family based and holistic assessments, in time.

CASCAIDr’s management’s Care Act training since early 2015 has made it clear that whilst signposting needy people to resources that could help, and networks that might help, is all very well at the first contact and pre-assessment stage, the solutions being suggested do have to be workable, and accessible, in terms of the known characteristics of the applicant for services.

A person might be having ALL their needs met by reason of funding them, privately, or lucky enough to have a wrap around family network, but we are all expected to know that we cannot assume that a person would carry on spending their money or a family, their time, in that way, and that is why those factors have to be explored and do not go to eligibility, but only to the duty to meet need, after proper and lawful probing and thinking!

When a person who’s got some current support or a person who’s engaged with prevention, next comes back for their assessment ‘proper’, then if the current support or preventive measures were short term in nature, it is just possible that these inputs may indeed have helped mitigate a longer term or more chronic need; but it’s equally possible that they may just have put a bandaid on a problem whilst they were available, and that as soon as they cease to be available, the person’s situation will rocket way up there again, in terms of impact.

It must be obvious that targeted prevention does not go on forever (whether charitably provided, for free or paid for by some or other agency) because new people are being signposted to the services all the time.

It’s helpful to think of this as one would regarding the well managed need principle for CHC status: if the problem has been managed away for good, then the need can be regarded as having been resolved; but if the prevention or other human assistance needs to be funded on a longer term basis or is unreliable, and the problem would pop up again without it, then the need still exists. The ‘inability to achieve’ test is explicitly defined to exclude the availability of human assistance, and thi case establishes, as predicted, that the impact test must be considered in precisely the same vein.

A link to the case can be found here:

https://www.bailii.org/ew/cases/EWHC/Admin/2019/3465.html

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