Archive for Uncategorized – Page 2

Theme no. 1: Fitness for hospital discharge and ‘clinical optimisation’ – who is accountable for these decisions?

Nobody is supposed to be discharged from the care of the NHS in an acute hospital until they are medically fit. That’s a professional evaluation, based on clinical consensus after monitoring after any operation, or adjustment in medication as to whether a person is at the point at which care and assessment can safely be continued in a non-acute setting. [clinically optimised/medically fit for discharge/medically optimised : NHS England (2015)).

But ‘fit for discharge’ doesn’t, in fact, just mean in physical terms, if you look further into what law requires… the law of negligence, and the PUBLIC LAW rules that are now set out in the Care Act, and which BIND and GOVERN hospital administrators and CCGs, in a legal sense.

A safe discharge that is not likely to cause foreseeable harm to a person, assuming a clinical decision has been taken about their condition, or state of recovery, has to look to the consequences of the discharge, and therefore, to what is waiting for the person and how necessary ongoing input on account of the cause of the visit to hospital will be delivered. That is all still down to the NHS – or could be said to be, by a canny enough Personal Injury lawyer.

Ongoing NHS inputs

The duty of care in negligence, does not end, just because a person doesn’t need to be in the acute hospital any longer.

The NHS may well have ongoing services that ‘should’ be offered to the person, that will contribute to safe discharge: rehabilitation, intermediate care, visits from the community nursing team or a specialist nurse for eg stoma care.

The new Discharge to Assess model (D2A) mentions this, whilst blurring the boundaries of who ‘should’ pay for it, within the auspices of Better Care agreements etc.

It doesn’t matter who pays, as long as the person doesn’t have to pay, one might well say, if one had a pooled budget or a Better Care project to reduce hospital waiting lists…

To our mind the law is that nobody should be discharged from hospital without someone from the NHS satisfying themselves that any ongoing inputs that are needed aren’t beyond the remit of what social care can feasibly be expected to provide.

  • The National Franework and D2A guidance refer to recuperation and rehabilitation services and intermediate care from the NHS.
  • Just because someone has had a negative Checklist, for CHC services, does not mean that they are not owed ongoing NHS services.
  • A Health Needs assessment may have acknowledged that the person has needs for a registered nurse service, and one might have to be arranged in the community if a care home is not where the person needs to go.
  • What is known to exist and be available from the current community health service menu is not the determinant of what should exist, having been commissioned by the CCG.
  • A joint package might need to be put in place before discharge could be SAFE.

It’s only after that thinking has been done, that a person can be safely discharged, lawfully.

Necessary NHS inputs by dint of nobody else having the power to provide for them

There are also some services that may be needed which the NHS ‘ought’ to provide, in legal terms, simply because no other agency is responsible for them – by dint of their nature or level of skill required for proper safe delivery.

There is scope in the Care Act for regulations that could contain a list of those, but the DH has never put its views down in anything so concrete. Suctioning a trachy tube has been said by a judge, however, not to be capable of being social care, which perhaps explains why there have been so few cases about that question ever allowed to get to court.

Ongoing social care inputs

Most ongoing input, though, will be regarded as a matter for social care or self help, if one is not eligible for social care. So a clear grasp of the rules is required, by anyone considering what to say to a person in a hospital bed.

  • Nobody is ineligible for care in their own home, if they meet the eligibility criteria on the fact, even if they are wealthy.
  • Everyone is entitled to an assessment, and everyone is entitled to have the necessary care and support at home, if going home is what is decided to be practicable – arranged through social services, even if they are then later charged full cost for the services.
  • This right to assessment includes people whose needs point towards a care home, by dint of the level or continuity of the care needed, even if they have more than the capital/savings amount (ignoring the value of the patient’s share of the house if the patient is one of a couple, and ignoring the value of their share for the first 12 weeks if they are not already in a care home, if living alone).
  • The outcome of the assessment does not necessarily lead to a local authority duty to meet the needs, but if a well off person lacks capacity to contract, and there’s nobody else willing to make arrangements, they are still entitled to a placement, courtesy of social services, even if rich, and will merely be charged full cost (from day 1 or from when the 12 week disregard ends).

We still look to the National Framework on CHC for its approach to genuine MDT involvement in CHC thinking – from checklisting, through the DST stage, and involvement in the ratification arrangements. Modern systems seem to be excluding social workers altogether from that process, however, in terms of the pressure to get the decision making done FAST, and the National Framework is just not consistent with that.

To our mind at least, here at CASCAIDr, nobody should be discharged without at least a light assessment for social care services under the Care Act, unless they refuse to be assessed, with sufficient capacity to understand what they are giving up, having been told about it by a person or a leaflet

A person who clearly needs to go to a care home, and has some appearance of need for CHC, should be positively checklisted.

The discharge of no patient should be effected without social service input if there is any doubt about their capacity to contract for services.

If they have no appearance of need for CHC services after a checklist, that process having been based on locally agreed criteria in the first place – and no appearance of lack of capacity, they should be offered an assessment with the advice that they may not qualify for any funding subsidy given their means may be above threshold. They may then choose not to bother.

Questions to be thinking about:

We do not think that discharge arrangements cater for that kind of thinking at the moment.

We do not know how a local authority can regard it as possible to co-operate on hospital discharge without having a social work team available in the general hospital.

We do not know how hospital discharge co-ordinators can run a smooth lawful system without understanding how social care duties (and rights to choice of accommodation of certain types)  WORKS, in legal terms.

And we do not know how CHC obligations are lawfully discharged without an agreement as to who should even be Checklisted in the first place.

  • It can’t be just ‘needs a care home’ – because one can qualify for CHC in any setting
  • It can’t be ‘needs more than 3 (or 4) visits a day’ – because councils can’t just treat the cost of a care home as a cap on what level of home care still counts as social care, as opposed to health care.
  • It can’t be ‘needs double handling’ for the same reason – it’s too rough and ready an approach to checklisting.
  • It certainly can’t be ‘because they or their relatives look rich’! CHC is wealth-blind, it’s part of the NHS’s duty to allocate that status where it must, in accordance with the National Framework.

The finalised proposals when they emerge from the DH will require really careful consideration, we feel.


Introduction to our #HosDisChat in support of CASCAIDr’s launch

Hospital discharge disputes, delay, and distress

Healthwatch England’s Safely Home? report found that one in 10 trusts do not routinely notify relatives and carers that someone has been discharged, and that one in eight people did not feel they were able to cope in their own home after being discharged from hospital.

Conversely, Age UK estimate that older patients have spent 2.4 million days over the last five years ‘stuck in hospital beds’ due to a lack of appropriate social care placements and support.

NICE had issued a guideline in 2015 – Transition between inpatient hospital settings and community or care home settings for adults with social care needs.

NHS England issued a Patient Safety Alert on risks arising from breakdowns in communication during discharge

In May 2016 the National Audit office (NAO) reported its findings on discharging older patients from hospital. It reported nearly two thirds of hospital bed days being occupied by people over 65 with an 18% rise in emergency admission for older people in the last four years.

The NAO also reported 1.75 million hospital bed days being lost due to delays in transfer of care in 2015, with an estimated 4.2 million bed days occupied by people no longer in need of acute hospital care.  Delayed discharges from hospital are estimated to cost the NHS around £900 million per year and that statistic is not up to date in any event.

Here’s a quotation taken from the Kings Fund in 2015:


Too often vulnerable people are sent home from hospital without the right equipment in their home or without a care plan or are simply discharged in inappropriate clothing without anyone to help them when they get home.  Only one in four respondents to the survey in 2014 had concerns about the level of care available to their parent at discharge. But those who felt their parent was discharged prematurely were almost eight times more likely to have concerns about the level of care available after discharge than those who didn’t think their relative was sent home prematurely.


Dame Julie Mellor the Parliamentary and Health Service Ombudsman did a report into unsafe hospital discharge in May 2016 and concluded as follows:


In 2014-15 we investigated 221 complaints on this issue – an increase of over a third in complaints in the previous year. We upheld, or partly upheld over half of these. This was significantly higher than our average uphold rate of 37% in the same year. As we are the final tier of the complaints system, we only see a fraction of the total number of complaints made to NHS organisations – those cases that it has not been possible to resolve locally.


Dame Julie’s office reported on 9 appalling cases in 2016, identifying 4 major issues.

  • Discharge before one was medically fit
  • Discharge without proper consultation
  • Discharge without notice to relatives
  • Discharge into poorly co-ordinated service profiles

The Department of Health established a national programme on improving discharge. The programme brought together key NHS and social care organisations to develop a vision for improvement, which should enable all health and social care professionals to put the needs of patients and their carers at the forefront of discharge planning. The outcome was this:

The key message is this:

“Implementing a discharge to assess model where going home is the default pathway, with alternative pathways for people who cannot go straight home, is more than good practice, it is the right thing to do.”

Delivering on this though, requires that

“commissioners and providers within health and care systems … challenge current practice and change mind-sets. Collaboration between health and care locally is vital to ensure sufficient quality of service, demonstrable change and agreement on how best to allocate resources and funds.”


The statutory Guidance on hospital discharge in Annex G says this:

Not everyone who is admitted to hospital will need care and support after discharge. Indeed, for the majority of hospital discharges, this will not be the case and it is important within this context that NHS organisations do not issue assessment notices in a precautionary and/or routine way without having satisfied itself that there is a reasonable prospect that there may be a need for care and support for which arrangements may need to be made in order to ensure a safe discharge.

A locally agreed protocol between the NHS and local authorities which allows NHS staff to identify those likely to need care and support on discharge will provide help and advice as to when a patient should be considered to have possible care and support needs, in order to ensure the NHS issue assessment notices appropriately.

However, the relevant NHS body must issue an assessment notice where it considers that a patient may require care and support on discharge and the local authority must or may be required to meet such needs.

Before issuing any assessment notice, the NHS must consult with the patient and, where applicable, the carer. This is to avoid unnecessary assessments where, for example, the patient wishes to make private arrangements for care and support without the involvement of the local authority.

The minimum period is 2 days after the local authority has received an assessment notice or is treated as having received an assessment notice.

Any assessment notice which is given after 2pm on any day is treated as being given on the following day.


Before issuing an assessment notice, the NHS body must have also completed any assessment of the potential Continuing Health Care needs of the patient and if applicable made a decision on what services the NHS will be providing.

A balance should be struck between giving the local authority early notice of the need to undertake an assessment of the patient and the risk that the patient’s condition may change significantly such that any early planning needs to be reviewed.

A DH review has identified the following key issues with the current national framework and was planning on making decisions this month (December 2015) about changes to the Framework

Key Issues

Through our (the DH’s) engagement work to date we identified the following areas which points to the need for potential changes to the screening and assessment process:

  • Acute hospital episode lengths of stay have dramatically reduced over the lifetime of the CHC National Framework and rehabilitation, recovery and recuperation are now expected to take place after discharge from an acute hospital;
  • Recovery, recuperation and rehabilitation is required before screening and assessment for long-term care needs take place. Otherwise this leads to unnecessary assessments or needs being overstated because the person has not yet recovered;
  • Discharge from acute care under the Care Act: The need to clarify pathways across the health and social care system;
  • Confusion over interim funding arrangements and a lack of consistency around interim provision, which may lead to delays in hospital and act as a barrier to screening and assessment in the community;
  • Raised expectations: Completing the screening process at the wrong time and/or in the wrong setting could raise the expectations of individuals and their families that they are eligible for CHC when they are actually far from eligibility, leading to appeals and complaints (some of which can last years);
  • Difficult to reach decisions within 28 days, as set out as a guide in the National Framework, for example where screening is carried out in an acute setting without giving time for recovery and the need to delay assessment after discharge

Proposed Changes regarding checklisting

1) To add a statement to the National Framework that explicitly says that a Checklist does not need to be undertaken if it is clear to staff within the health and care system there is not a need for CHC.

2) To provide specific examples about the circumstances in which screening (with a checklist) is not necessary. And, where a screening (with a checklist) may be needed, providing guidance to staff to make a decision later in the individual’s recovery pathway about whether or not to screen at this point.  For example:

  • Where the individual is rapidly deteriorating and may be entering the end state of a terminal illness;
  • Where the individual is in a post-acute phase of recovery, rehabilitation and/or recuperation, regardless of setting;
  • Where the individual does not have significant long-term health care needs
  • Where the individual is recovering from a temporary conditions, and their longer term needs are not clear. 

Proposed Changes to review rules

1) We propose the following changes and clarifications:

  • The purpose of 3 and 12 month reviews is to focus on the appropriateness of the care package and whether it is suitable for that person’s needs. The original DST will continue to be required for this review.
  • Eligibility is only to be reviewed where there has been a change in the person’s health needs that could impact upon their primary health need. The decision not to review eligibility will be a professional decision, where the person’s needs are unchanged or have increased.
  • Where an eligibility assessment is required, then this will involve a full MDT and a new DST, as per the normal CHC process.

2) In addition, we would like to explore if we need a 3 month review in all cases:

  • Our proposition to remove the requirement for a 3 month review, while ensuring that all individuals get at least an annual review. This should give CCGs the flexibility to conduct reviews as appropriate to the case rather than focusing on trying to deliver a 3 month review target.
  • Still retain the flexibility for reviews to be conducted more frequently for individuals who have needs that fluctuate or highly complex needs. This proposition is based on moving towards focusing on the quality of the care package rather than eligibility for CHC.
  • Where a case is Fast Track cases, the 3 month review will remain a requirement.

Proposed changes to the training system

Our proposal is to state that for health and care professionals delivering the CHC pathway (screening. full assessments and their co-ordination, eligibility recommendations and decision-making, reviews, and challenges to individual decisions):

  • Staff can only perform the CHC activities and tasks they have been trained and are competent to perform
  • CCGs will retain oversight for ensuring practitioners can access and undertake formal training to enable them to perform their role within the application of the National framework, for example screening and assessments
  • The National Framework should continue to encourage joint collaboration and training across  the health and care system



Summary of the law on the timing of Assessment and Discharge notices for transfers from acute hospitals

Schedule 3 of the Care Act is the law on hospital discharge now, and Annex G is the Guidance – all Care Act documents, but applicable to the NHS as well as Local Authorities.

Section 6 and 7 of the Care Act require co-operation between relevant partners, Health and the council being just such.

The rules on hospital discharge only apply to acute hospitals, not the discharge of anyone from any other sort of NHS care arrangements.

Schedule 3, Care Act

7(1) A hospital patient is a person ordinarily resident in England who—

(a) is being accommodated at an NHS hospital, or at an independent hospital as a result of arrangements made by an NHS body, and

(b) is receiving (or has received or can reasonably be expected to receive) acute care.


7(6) “Acute care” means intensive medical treatment provided by or under the supervision of a consultant, that lasts for a limited period after which the person receiving the treatment no longer benefits from it.

[* CASCAIDr’s translation: these regs and Guidance only apply to hospitals providing acute NHS funded care to patients who are ordinarily resident in England (care not excluded by the definition of acute care]

7(7) Care is not “acute care” if the patient has given an undertaking (or one has been given on the patient’s behalf) to pay for it; nor is any of the following “acute care”—

(a) care of an expectant or nursing mother;

(b) mental health care;

(c) palliative care;

(d) a structured programme of care provided for a limited period to help a person maintain or regain the ability to live at home;

(e) care provided for recuperation or rehabilitation.


(8)“Mental health care” means psychiatric services, or other services provided for the purpose of preventing, diagnosing or treating illness, the arrangements for which are the primary responsibility of a consultant psychiatrist.

[* CASCAIDr’s translation: if you are having care of any of these sorts, or if you are a patient from abroad who’s not ordinarily resident in England, then the hospital discharge provisions of the Care Act, Regs and Guidance, don’t apply to you.]




The 2014 Care and Support Regulations make provision for the details of the scheme for the discharge of hospital patients with care and support.

Schedule 3 to the Act makes legal provision for co-operative working to secure the safe discharge of patients in England from NHS, or NHS arranged, hospital care to local authority care and support.

The Regulations permit a relevant NHS body to seek reimbursement from a relevant local authority where a patient’s discharge has been delayed due to a failure of the local authority either to arrange for relevant assessments or to meet a patient’s or (where applicable) that patient’s carer’s needs which the local authority proposes to meet. (ie failure to do what the council has decided to do to discharge its duty).

The regulations define “NHS continuing health care” as a package of care arranged and funded solely by the health service for a person aged 18 or over to meet physical or mental health needs which have arisen as a result of disability, accident or illness – but do not otherwise mention this status. If one is on a joint package, it’s not CHC – it’s a package of health and social care, albeit designed to fit together.

CHC services are just ONE service the NHS might owe.

The measures mean that old s 2 and 5 notices are now called Assessment and Discharge notices and that they and withdrawal notices are now governed by Care Act regulations.

Sched 3

1(4) Before giving an assessment notice, the NHS body responsible for the patient must consult—

(a) the patient, and

(b) where it is feasible to do so, any carer that the patient has.

[* CASCAIDr’s translation: this means the NHS must ask them at least what their situation is for when they leave hospital.

Most people don’t know about adult social care services, if they’ve never needed them, or known anyone who did.

So NOT TELLING a patient that he or she is entitled to an assessment for social care – or worse – getting it wrong, because MYTHS about the capital threshold have been allowed to take root, would be shocking, to our minds – and risk the possibility that the apparently rich or ‘posh’ may just be left to their own devices…]

Care Act guidance

It is fundamental that both the NHS body and the local authority involve the patient and, if appropriate, their carer about their current and ongoing care and support needs.

In doing this, they should have already undertaken an assessment of the patient’s capacity to participate in an informed way in these discussions and, where they do not believe that the capacity exists, they should move forward by taking account of other existing regulation and guidance such as for example the Mental Capacity Act.

[* CASCAIDr’s translation: it’s really clear what is meant here, eh?? It can only mean – take steps to act under the MCA if someone’s got to move the patient out of hospital without their capacitated consent. Which means consulting the relatives about best interests, NOT just persuading the relatives that they must do it within a certain specified time or having a practice to “do it at night without using an ambulance unless it’s the only way”…]

Sched 3

1(1) Where the NHS body responsible for a hospital patient considers that it is not likely to be safe to discharge the patient unless arrangements for meeting the patient’s needs for care and support are in place,

[* CASCAIDr’s translation: so a discharge co-ordinator might not consider it would be unsafe to discharge, if the patient or someone else said ‘it will be alright’ but not if that was not credible – because for instance the patient clearly lacks capacity, is perseverative about going home, has no visitors, etc]

the body must give notice to—

  • the local authority …


[* CASCAIDr’s translation: in case they have no hospital team, we assume]

And an assessment notice is not valid unless it contains the following:

(f) a statement—

(i) that the NHS body responsible for the patient has complied with its duty under paragraph 1(4) of Schedule 3 (duty to consult patient and any carer that the patient has);

(ii) that the NHS body has considered whether or not to provide the patient with NHS continuing health care, and the result of that consideration; and

(iii) as to whether the patient or (where applicable) the patient’s carer has objected to the giving of the assessment notice;

[* CASCAIDr’s translation: notice that the fact of an objection does not prevent an assessment notice at all]


The Guidance:

So, where the NHS considers that the patient may have needs for continuing health care to be met by the NHS after discharge, then it must have (i) carried out a continuing health care assessment first and (ii) made a decision as to what (if any) services the NHS is to provide to the patient after discharge and (iii) informed the local authority of these details BEFORE IT CAN ISSUE A VALID ASSESSMENT NOTICE.

* CASCAIDr’s translation: This clearly implies that a CHC checklist will have been done, before an assessment notice has been triggered, because it proceeds upon the NHS’s thinking that a person may have CHC needs.

This implies a positive checklist.

A CHC assessment is laymen’s language for a Decision Support Tool Exercise.


* CASCAIDr’s comment:

This approach makes it acceptable for no social care assessment to have been done before a decision on a CHC checklist or DST has been completed.)

How does that fit with exhortation to multi-disciplinary team co-operation and support that one finds in the National Framework?

How that MUCH screening, discussion, thinking and mapping and doing a rationale, could have happened properly without any social work input, is literally beyond us.

Yes, we know that an MDT need not contain a social worker, because an MDT is defined so as to refer only to two or more professionals from healthcare – but unless they are legally literate, they wouldn’t know that the Checklist AND DST have got to draw in needs across social care domains as well as needs that would be the responsibility of the NHS.

If a checklist proceeds without any inputs from social work staff, and if the local authority isn’t even notified of a person until after a CHC decision has made, the decision would then need to be challenged, if it seemed aberrant. This is incredibly shortsighted, or worse, deliberate.


Relevant Practice guidance from the current National Framework:

16.1   Local joint health and social care processes should be in place to identify individuals for whom it may be appropriate to complete a Checklist, including individuals in community settings within the context of the above duty. As a minimum, wherever an individual requires a care home placement or has significant support needs, a Checklist would be expected to be completed (unless the decision is made to go straight to the completion of a DST).

18.1 In a hospital setting the Checklist should only be completed once an individual’s acute care and treatment has reached the stage where their needs on discharge are clear. Paragraph 65 of this Framework highlights the need for practitioners to consider whether the individual would benefit from other NHS-funded care in order to maximise their abilities and provide a clearer view of their likely longer-term needs before consideration of NHS continuing healthcare eligibility. This should be considered before completion of the Checklist as well as before completion of the DST.

18.4 ….As far as possible the individual should be ready for safe discharge at the point that the Checklist is undertaken and sent to the CCG. It should therefore be completed at the point where wider post-discharge needs are also being assessed (although before issue of delayed discharge notices).

The next stage – after the Assessment Notice

Sched 3

3(1) The relevant authority, having received an assessment notice and having in light of it carried out a needs assessment and (where applicable) a carer’s assessment, must inform the NHS body responsible for the patient—

(a) whether the patient has needs for care and support,

(b) (where applicable) whether a carer has needs for support,

(c) whether any of the needs referred to in paragraphs (a) and (b) meet the eligibility criteria, and

(d) how the authority plans to meet such of those needs as meet the eligibility criteria.

[* CASCAIDr’s translation:

this is the proof that the council must engage with the NHS to tell the discharge co-ordinator what its decision is, not what the social worker thinks the panel MIGHT sign off. This means that panels have to be available all the time, which isn’t how it is working, in our experience.]


The Guidance:

On receiving an assessment notice, the local authority must carry out a need assessment of the patient and (where applicable) a carer’s assessment so as to determine, in the first place, whether it considers that the patient and where applicable, carer has needs. If so, the local authority must then determine whether any of these identified needs meet the eligibility criteria and if so, then how it proposes to meet any (if at all) of those needs.

The local authority must inform the NHS of the outcome of its assessment and decisions.

* CASCAIDr’s translation: This is where an astute discharge team of social work staff would say yes, needs, yes eligible for these social care related needs, but not eligible in relation to these needs, because they are needs beyond which a social care authority can feasibly be expected to provide. Those needs are not even conceivably about daily living activities, they are about eg staying alive or functioning for essential purposes, despite one’s physical or mental symptoms from one’s illness or impairment.]



What about patients already known to social services and who are already in receipt of services?

Sched 3

(2) Where, having carried out a needs assessment or carer’s assessment in a case within section 27(4), the relevant authority considers that the patient’s needs for care and support or (as the case may be) the carer’s needs for support have changed, it must inform the NHS body responsible for the patient of the change.

S27 (4) of the Care Act says this:

Where a local authority is satisfied that circumstances have changed in a way that affects a [an existing care plan ie when someone goes into hospital on a care plan but might need a different one coming out]  care and support plan or a support plan, the authority must— (do a proportionate re-assessment)

[* CASCAIDr’s translation: so, we would say that whenever a care home client or a home care patient goes into hospital, the system ought to flag up that a review needs to be done in the name of the authority to see if anything has changed or needs to be changed in the care plan before discharge – and that is another reason why it’s not feasible not to have social workers at hospitals – they have duties BEFORE any checklist or CHC determination, which the NHS needs them to discharge, before the NHS can do its bit, sensibly.]


Withdrawing an assessment notice

4   A notice withdrawing an assessment notice must be given where—

(a) the NHS body responsible for the patient considers that it is likely to be safe to discharge the patient without arrangements for meeting the patient’s needs for care and support or (where applicable) the carer’s needs for support being put in place;

[* CASCAIDr’s translation: this must be referring to where someone figures out another way of meeting the needs, other than through social care]

(b) the NHS body considers that the patient needs NHS continuing health care;

[* CASCAIDr’s translation: so this shows that if there was a very early assessment notice done before a decision on NHS continuing health care, it must be withdrawn if the decision is in favour, ultimately – it would not ever have been valid].

(c) the NHS body, having received the information specified in paragraph 3(1)(d) of Schedule 3 (how local authority plans to meet needs), still considers that it is unlikely to be safe to discharge the patient from hospital unless further arrangements are put in place for meeting the patient’s needs for care and support or (where applicable) the patient’s carer’s needs for support;

[* CASCAIDr’s comment:

this is what makes safe discharge ultimately the responsibility of the NHS, having engaged with the question will that offer be enough and whether it is lawful in our view!]

(d) the patient’s proposed treatment is cancelled or postponed;

(e) the NHS body has been informed by the relevant authority that it is not required to carry out an assessment because the patient has refused a needs assessment [that would have to be with mental capacity, under s11] (a) or (where applicable) the patient’s carer has refused a carer’s assessment(b); or [ordinary residence, not relevant for today’s purposes]



4 (3) A discharge notice must specify—

(a) whether the NHS body responsible for the patient will be providing or arranging for the provision of services under the National Health Service Act 2006 to the patient after discharge, and

(b) if it will, what those services are.

[* CASCAIDr’s translation: this says ‘will be providing’ as if it is just down to a decision of a manager, but these services will be the DUTY of the NHS if the services are NHS services that the council cannot be expected to provide (on the footing that they are not within the scope of a social care service.) The duty of co-operation inherently compels some sort of agreement about medicines administration in the community, for instance, for this to work in practice.]

Discharge notice: contents

6.—(1) A discharge notice must contain—

(e) the date on which it is proposed that the patient be discharged;

(f) a statement confirming that the patient and, where applicable, the patient’s carer has been informed of the date on which it is proposed that the patient be discharged;

[* CASCAIDr’s translation: so nobody should be discharged without their carer’s knowledge]

and (g) a statement that the discharge notice is given under paragraph 2(1)(b) of Schedule 3.


Discharge notice: withdrawal

Sched 3

7(1) Subject to paragraph (2), a notice withdrawing a discharge notice must be given where the NHS body responsible for the patient considers that it is no longer likely to be safe to discharge the patient on the proposed discharge date.

[* CASCAIDr’s translation: for whatever reason, here: deterioration, a change of professional opinion, a nagging doubt about the adequacy of services being offered on the part of the council or the terms on which a family is being invited to accede to a placement with a top up, perhaps?]

(2) Paragraph (1) does not apply where the only reason that the NHS body considers that it is no longer likely to be safe to discharge the patient on the proposed discharge date is that the relevant authority has

(a) not discharged its duty to carry out a needs assessment or (where applicable) a carer’s assessment in relation to the patient; [* CASCAIDr’s translation: that just excludes a missing assessment as a reason for not withdrawing a discharge notice, in the case of concerns about safety of going ahead with discharge – it doesn’t exclude the need to withdraw a discharge notice where for instance the NHS has nagging doubts about the accuracy of the assessment, in our view] – or

(b) not put in place arrangements for meeting some or all of those needs that it proposes to meet under sections 18 to 20 in the case of the patient or (where applicable) the patient’s carer.

* CASCAIDr’s translation: Again, this just excludes absent care arrangements as planned for by the council, as a reason for not withdrawing a discharge notice, in the case of concerns about safety of going ahead with discharge – we don’t think that the reference to ‘some or all’ of the needs proposed to be met, excludes the need to withdraw a discharge notice where for instance the NHS has nagging doubts about the adequacy of the arrangements proposed or made, due to the concerns raised by a relative or advocate.]

And the reason is obvious: it is the act of discharge that puts the patient into reasonably foreseeable risk of physical harm, if the discharge is not going to be safe! And that gives rise to a risk of legal proceedings sounding in negligence against the NHS brought by PI solicitors who could then do it on a ‘no win no fee’ basis, for a claim for damages.

Free Care Act JRs webinar 8 December – register now and support CASCAIDr’s launch

On 8th December, midway through #CASCAIDr’s pre-opening fundraising campaign, we’re delighted that Belinda Schwehr will be offering a free 1.5 hr webinar, on the Oxfordshire and Merton cases  (all about how councils MUST behave during assessment and care planning, if the outcomes are to be lawful) (and STOP PRESS!! also the Essex case on fees)

The aim is to empower and enable people needing social care services, their advocates and their relatives to wise up, and become legally literate enough to ensure that they get their just deserts – their full legal entitlement.

It will also help Providers grasp what they would have to do to win a case on fees, these days.

The webinar is free to anyone who can attend online on the day. It’s interactive and the sound will work if you have good broadband and a sound card in your laptop.

The RECORDING of the event will cost £50 for anyone who wants one afterwards, and will play for as many times as you need, but Beilinda will be donating ALL the proceeds to the charity. And getting gift aid on top, courtesy of our wonderful government…

If anyone would like to make further donations, we will not say No, of course – and there will be a link to our button on the day, on this blog post.

So, please do diarise now. 8th December 11am-12.30pm.

Here is the registration link for getting admission to the webinar:

“We can cap respite to a set amount per year, AND charge carers for it”

Respite is not a carer’s service, any longer, in any situation.

Respite is a service that enables a carer to stop caring for a while, and thus it clearly benefits the carer.

But the law says that the right place for respite, conceptually, in the system, is as a service for a client.

That must be right, we think, because if the client is owed a duty, on account of eligible needs, and that duty has been reduced by willing and able care from a carer, then for the times when that carer is not willing or able, then the unmet eligible assessed need is still part and parcel of the assessed needs, and part of the council’s duty under s18 – ie., part of what has to be MET.

So, respite is a client service.

That means that however much is provided, it is the client’s means, and not the carer’s means, that are relevant for financial assessment.

NB Carers CAN be charged for carers’ services, but few councils feel able to do it, because it doesn’t send out a very appreciative message!

The cost of the respite service (if it is to be charged for at all – and some councils are NOT charging for it) is added to the cost of the client’s other services and then the financial assessment process is applied, with the caveat that the client cannot be charged more for any service, than the service has in fact cost the council.

Where the person being cared for is not an adult social care services service user, and refuses to be assessed, with mental capacity to do so, regardless of the strain on their carer, (that is up to them) then the council is not able to provide respite as a service direct to the person in need of the care without the consent of that person AND their agreement to being financially assessed. So that is a situation where a non-service user gets to be charged independently of their status, legally, so as to enable the carer to keep on caring.

An incapacitated non-service user in need of the input, cannot consent, of course, but in that situation they would not have been empowered to refuse assessment, and would have most probably have been constituted as a service user in his or her own right. Then the respite care inputs would have been applied through the Mental Capacity Act s5 route, and the carer would be able to have a rest.

Secondly, can the AMOUNT of respite that a council or a CCG funds, be capped?

Well it all depends what you mean by capped, does it not?

If the council wants to set out a general policy that in most cases, it is willing to provide carers who are doing more than a certain amount of care per year, with respite up to a particular number of days, so as to support them to remain willing to go on caring, we doubt that that would be seen as a bad idea or unlawful. It assumes that people who DO the most should get the MOST, or that people doing over a certain amount will all sustain similar levels of input – and so is directed towards equity and treating like cases alike.

The trouble is though that people wider circumstances and obligations or situations will probably mean that x hours of input has a different impact on many of them. So as a starting point, a general policy, no problem, but this approach must not firm up into a rule.

A council could even say ‘Other than in exceptional circumstances (and in light of our duty to the entire community that we serve, and for which we must stretch our scarce resources, to cover, equitably) –  we aim to provide a maximum of 4 weeks per year’.

CASCAIDr wouldn’t say that this is worth a legal challenge, if a council with such a policy conscientiously and genuinely considered the individual’s claim for more support as a carer, to see if it was an exceptional case.

But if the policy states that say ‘4 weeks respite is the most that will be funded, end of!’ – it’s like saying that there is no case in the community, in the whole area, where the care manager is even to be allowed to try to persuade senior management that 4 weeks is just not going to make the situation sustainable. And that is a fetter of discretion, which is unlawful.

Two notes of caution here. It may be that an apparent cap is not in fact a cap; it may be that there is a practice instruction to staff that where a person wants more than the target maximum then the case must go to a Panel. That is not a cap. That is a limitation of delegated authority to make a decision, binding on the council, above a certain amount or cost, for front line members of staff, and reserving the difficult decisions for more senior staff, who are accountable, ultimately, by way of their reasoning for saying yes or no in the end.

Secondly, a person does not possess a right to care or someone else, even as part of their human rights, and being related to that person, just because if money were no object, the person they are caring for could be sustained, long term, and the carer sustained as well. Austerity is relevant to the question of HOW to meet need, although not an excuse for offering to meet it in an unlawful, unfair, irrational or human rights non-compliant way.

The point is that at some point, the combined cost of meeting a person’s needs AND the carer’s needs, in the person’s own home, MAY for whatever reason, start to look disproportionately expensive when compared to what the cost would be in a care home. This is all public money, and nobody has a right, (unless they also have that rare thing, a NEED that can only be met in an own home setting, adequately and appropriately) under the current legal framework, to stay in their own home regardless of the cost or to tell the State how to meet needs, if the person needs State funding or State arranged services.

THAT is the difficult conversation that has to be had, in complex cases. Not a job for junior or unsupervised or legally unaware staff!

“We don’t ‘do’ x, y or z, any longer… because …er… ” ???

People are often told by Advice and Information services, attached to councils, these days, ‘We don’t ‘do’ that any longer’ – the ‘that’ being, variously, shopping, cleaning, recreation, therapeutic input, meal preparation or night time care.

Often, some further form of explanation or reasoning then emerges, such as ‘Everyone needs to shop/eat/clean/… so we don’t see those as critical or substantial tasks any longer’, or ‘We don’t see those as social CARE tasks any longer’ or ‘We don’t pay for the cost of food, just like we don’t pay people’s rent or mortgages out of adult social care money’….

With recreation, the argument is a bit different – it’s ‘There are facilities for recreation and leisure where you live, so you need to use them, and we might (or might not) assist with escorting there or transporting you there…’ Or ‘We will pay for the escort, but not the cost of the actual leisure itself – that’s your choice, and you have benefits for spending, when it comes to pleasure’…

With ‘therapeutic’ input, such as speech and language therapy, counselling or physiotherapy or chiropody, the suggestion is always going to be ‘That’s Health’s job, and not for us to do. You can go to your GP and ask for that’.

With night time care, when care can cost more, if it’s specialist and task oriented, than it does in the day, because it’s anti-social hours – or ironically less than it would during the day because the contract for the staff’s work has treated the night shift to be treated as unmeasured time, and not measured hours for the counting rules under the Working Time Directive, the assertion might be as follows:

  • If it’s at night, we expect the family to do the input for free, and/or it counts as what the household is getting the Carer’s Allowance FOR (this may be true – there’s a minimum number of hours required for carers’ allowance, but at least it isn’t defined to exclude night time care or presence)
  • If it’s at night, we think technology will assist, because the person will generally be asleep and the sensor will warn staff that help will soon be needed
  • If it’s at night, well, the nation thinks that incontinence pads are sufficiently dignified for managing safe urination, even if the person is not yet incontinent, so that must be right then, or at least, not so unreasonable that a court will strike it down (McDonald)

The basics of the legal framework

The law is that a council is in charge under the Care Act of identifying needs in a person centred and holistic way, and then identifying inabilities to achieve without assistance, and without undue pain, distress, risk to self or others, or anxiety – across particular domains. Then the council has to decide – having had regard to the individual’s and others’ views – whether there is consequential significant impact on a list of features of a life, set out in the Care Act, all part and parcel of ‘wellbeing’.

IF there is, then the council has to meet the person’s needs – and is the decision-maker about that too, but always subject to judicial review, for error of law, irrationality, fettering of discretion, leaving out obviously relevant considerations, procedural unfairness or a breach of human rights.

If guilty of those legal wrongs, then the council has to have another go at the task in question (assessment or care planning or whatever), without repeating the same conceptual mistakes.

So are the stances above, unlawful, clearly, or arguably?

This is a subtle area of public law and it does all depend on how these things are presented.

It is really daft of any public body ever to say ‘We never…’ or ‘We don’t ever’ because the Care Act is very unlikely to justify that stance – it is so woolly and open textured – and saying Always or Never is a fetter on the discretion of the council and very often the judgement of the staff who are doing the work with the clients in the first place.

Drilling down a bit, particular services are not what is being assessed for any longer. It’s needs, deficits, inabilities to achieve, and impact on wellbeing, not ‘care home bed’ ‘supported living tenancy’ ‘meals on wheels’, ‘aids’ or ‘adaptations’ or ‘day care’ any longer’.

Secondly, Section 8 sets out examples of all the things that can be done to meet needs, and specifically lists very open textured concepts such as care, support, accommodation, advocacy and counselling.

It also says that goods and facilities are Care Act services, so we don’t think that the cost of meals and tickets are able to be excluded, as a mattter of LAW, from social care services.

IT IS VERY IMPORTANT TO NOTE, though, that that’s not the same as saying that the council can’t ever say no – it might be lawfully able to say no on different grounds than we are discussing here.

For instance, the specific inputs wanted might not be affordable in times of austerity.

The budget available to the council is not the determinant of a care package, but in practice, it must often feel as if it is.

So, in an era of cuts and savings, the law is that even if not provided, the package might still be legally adequate, although it was not ideal or what was wanted, or what had been enjoyed up til then, courtesy of a previous package. Going lower and lower with reductions from a package is not necessarily unlawful, especially if done slowly, over a phased period – but more likely to be, if done fast: because the test for judicial review turns on whether no other reasonable body would or could possibly think that making this cut was legitimate.

That is why CASCAIDr will not, and cannot tell you that you have a good case against your council, just because your package has been cut. That is not the law, not even if your needs have not changed. 

What about therapeutic input? The kind of stuff that makes your mind, body and soul better, for want of a definition?

The statute does not limit the scope of needs to be met under the Care Act, to personal care for daily living tasks or practical assistance in the home; it simply ties a social care response needing to be related to a mental or physical impairment giving rise to the inabilities to achieve success in the 10 specific eligibility domains (outcomes) listed.

The Guidance expands that notion of impairment to illness, injury, condition, disability and disorder, and even to substance abuse. So it is a myth that just because someone is ILL, the needs arising from it are inevitably the job of the Heath Service. Half of social care services and funding is probably going to meet needs that would once have been met by hospitals, cottage hospitals, rehab units, and longstay NHS institutions from which people never had a chance of moving on. This has meant that much more has become to be regarded as chargeable adult social care, than the 1948 design of the system, intended. Some of that stuff is definitely therapeutic, and yet it is still provided by way of social care.

There is no black and white line and nothing in the regulations to say which side of that non-existent line, any given thing is. There is only principle and case law, and logic, and custom.

Section 22 forbids the local authority world from providing services or things that the NHS is required to provide. The obvious example is when a person has qualified for CHC – at that point, everything they would have needed by way of social and personal care MUST be provided by the health service, alongside the health inputs.

But very few people qualify for this status and funding. And whilst the scope of NHS responsibilities is virtually unlimited, but there are not very many requirements that the NHS must do x, y, or z, or that social care MUST NOT, because it has no legal powers to do the thing in question.

IT IS VERY IMPORTANT TO NOTE though, that just because someone doesn’t qualify for CHC, it doesn’t mean that EVERYthing ELSE THEY NEED is automatically for the local authority to provide. Assistance with a ventilator or a trachy tube, for instance; administration of medicines that REQUIRE qualified nurse skills, there and then, on the day; management of contractures, tissue viability management, extremely challenging behaviour or altered states of consciousness, skilled handling for people who are very challenging to move, albeit even for personal care tasks; mental illness symptoms requiring registered nurse nursing, anything that requires registered nurse nursing to be done properly, etc – all that sort of thing may either be agreed locally or asserted by the client OR the council to be beyond what is incidental or ancillary to that which social services can be expected to provide.

In which case, it IS THE JOB OF THE NHS, even if it is the devil’s own job to make the CCG commission it. But the duty to co-operate, generally and specifically, in sections 6 and 7 of the Care Act, mutually applicable to health and social care, can be relied on to persuade, rather than just sending the client hither and thither in ever decreasing circles…

[That’s what Better Care Fund deals, or split package agreements for non qualifying CHC patients, or s256 grants from the NHS to social services are for, for those on the statutory side of the line!]

Shopping is implicitly brought in by reference to the domain relating to the managing nutrition and hydration. The Guidance elaborates on the bare words in the regulations and refers to accessing food and hydration and being able to consume it.

Cleaning is implicitly brought in by reference to the domain relating to the maintenance of a habitable home environment. The Guidance elaborates on the bare words which MIGHT be thought to conjure up hoarding and insanitariness problems only, and expands the notion, way beyond that, to maintaining an environment that is safe and provides necessities, and one where one’s tenancy related obligations are met. So THAT ONE DOMAIN covers a very wide range of issues indeed.

Recreation and leisure have been said in decided case law to be part and parcel of article 8 rights to respect for private and family life, because for people with disabilities, it may only be through leisure that such people can feasibly engage with a community and develop their personalities and quality of life. Some people’s disabilities will mean that services for the general public just aren’t accessible to all, whatever reasonable adjustments are made by the provider in the community.  So a policy that one’s needs can always be met by universally available services is not ever going to be lawful. On the other hand, there is no benchmark for judges to use, other than what is actually happening out there in the real world, for answering this question: ‘How much fun is enough, in order to meet one’s needs?’

And that’s why polite, courteous assertion that MORE is in fact needed, by clients, carers, families, and front line staff, for a half way decent quality of life and independence, is actually a critical part of the health of the social care system overall.

Whatever statutory staff are prepared to say in a witness statement, is adequate and enough for a decent quality of life, in their professional opinion, is the ultimate bottom line, in social care and health services.

So social work values, standards, aspirations and professional judgements, all need protection, and the best senior managers will recognise this and let them thrive – or else society will come to doubt that social work staff ARE professionals, in the end.

Join CASCAIDr’s Twitter Chat on law and hospital discharge – #HosDisChat 12 Dec 8-9pm

On Tues 12 Dec CASCAIDr is hosting a Twitter Chat to explore using legal literacy as a tool in hospital discharge disputes

Between 8pm-9pm we’ll be discussing 5 themes, all related to hospital discharge issues, in support of CASCAIDr’s fundraising launch campaign. Just scroll down for how it works, and some technical advice to help manage being involved in the Chat.

We’ve organised input from some great people from the health and social care sector, with big minds and hearts, who’ve agreed to come together to lend their support to CASCAIDr’s campaign.

*   #HosDisChat is our Chat hashtag – please circulate it now, and up to 12 December, within your network!  *

CASCAIDr’s guest chatterers include Simon Stevens, Mark Harvey, Jo Moriarty, a RIPFA team member, John Bolton, Sara Livadeas, Neil Tester, Mervyn Eastman, David Oliver and Simon Bottery.

We’re going to be discussing the delays, the disputes, the distress, the dismay and the distance between the theory and the reality of sorting of one’s next setting or service, after a spell in a general hospital.

There’ll be 5 ‘themes’ looked at, within the chat, and 10 questions, 2 on each, one every 5 minutes – all pre-scheduled and made available for comment, bang on time. So an introduction and hello to the guests at 8pm and questions kicking off at 8.05, a fresh question every 5 minutes and a final wind-up from CASCAIDr at 8.55pm…

#HosDisChat is the hashtag to use in your tweets or within streams on twitter tools, to link questions and answers (Q1, A1, etc)

Our five themes with background reading links if you have time:

Questions can be tweeted in, up to 6pm on the day @CASCAIDr, and 2 oer theme will be selected by the host.
Donations in support of CASCAIDr

Since this is all to get CASCAIDr (the new legal advice charity founded by Belinda) off the ground, may we suggest donations at these levels please? You can do it here, on our secure MyDonate site – there’s an event page dedicated to this donations for this event:

Everyone’s going to get something of value out of this chat, regardless of why you have an interest in the topic.

So may we suggest:

£15.00 for the whole hour – listening in, and/or contributing

£10.00 for half an hour – listening in, and or contributing

£5.00 for suggesting a question on the day or tweeting one contribution in, during the chat


Instructions here, if you’ve never done one of these chats before…

The chat works through the hashtag ‘search’ facility on Twitter in the top right hand corner.

All participants, guests or the public, can search for the specific hashtag for the conversation, as it is about to begin. The theory is that nobody else will be using it – #HosDisChat

As it’s happening, it can get a bit chaotic, so here are some suggestions.

  • Some tools allow ‘buffering’ – that means the tweets get delivered in chunks instead of all at once, so you get to see 5 tweets at a time, with a pause in between. We will take it as it comes!
  • We suggest typing the hashtag out somewhere, and then blocking and copying the hashtag with Ctrl+C, so that you can paste it (Ctrl V) into every tweet you do. That way, all contributed tweets will end up in one search. Some people use a twitter chat tool that does this for you automatically. One such tool is, you can click here to directly access the #HosDisChat hashtag. allows you to pause the stream of Tweets if you need time to catch up – there is a button at the top of the screen to do this.
  • Each Question will be numbered. So when you’re joining in to reply or contribute, please type a1 or a2, etc in your tweet, after the hashtag, as the Chat moves along.

Hootsuite does not include one’s hashtag automatically but it does allow the setting up a Search tab, with a stream for the whole chat, and separate streams for each question. That’s what we’ll be doing to curate the chat’s outpouring, for curation and ongoing use, afterwards. But if you want to keep your thoughts corralled during the chat itself and keep an eye on answers to each question, from left to right across the page, this is the best thing to do, we think.

For a stream for the whole chat, use #HosDisChat for the search instruction within Hootsuite:

For separate streams for each Q and A put this type of search instruction into a new stream that you can set up on hootsuite, for each of the 10 questions,

  • for Q1 and all the answers to Q1, enter: #HosDisChat AND (q1 OR a1) -RT
  • for Q2 and all the answers to Q2 – enter: #HosDisChat AND (q2 OR a2) -RT

and so on…

What can possibly go wrong?  🙂

“You can’t get an independent funded advocate under the Care Act unless you are mentally incapacitated”

Under the Mental Capacity Act, getting an advocate called an IMCA is dependent on a view that a person lacks mental incapacity with regard to specific listed issues – long term accommodation in care homes or a hospital where the council or CCG is making the arrangement, or serious medical treatment, as examples.

Under the Care Act, getting an advocate depends on substantial difficulty in engaging with the processes of assessment and care planning or safeguarding and revisions of care plans – all processes where the council is obliged to ensure one is as involved as much as possible.

We think that a lesser degree of cognitive difficulty as the trigger for Care Act processes, because these processes are intellectually trickier to understand, than the question of implementing a decision of the nature mentioned above, under the Mental Capacity Act, in the best interests of the person, if they appear to be objecting. So many more people should be qualifying for advocacy under the Care Act than for IMCAs under the MCA.

The prior decisions before a care plan is actually implemented, as to eligibility and what is needed, adequately and appropriately to meet needs, under the Care Act, are NOT Mental Capacity Act decisions. They are public law decisions, and the council’s making them does not require the person’s consent, capacitated or otherwise. Funding advocacy is one way of limiting the risk that the system is not operating properly, and that’s important, because if that were to happen, it would impact disproportionately on people with cognitive impairments, and not merely those lacking in capacity, and that would be discriminatory, at the very least.

That concept of ‘substantial difficulty’ is not something that applies just because of language barriers, ignorance of how the system works and what the council’s duties are, or intellectual inability or one’s level of education. Those issues can be solved with interpreters, better advice and information, and the right of anyone who is struggling just because it IS hard to have a person of their own choosing be involved with the person, by the council. (See s9(5) for that right).

‘Substantial difficulty’ is specifically related to cognitive functioning and the approach to it echoes the 4 stage process in the MCA – absorbing the information, retaining it, weighing it and communicating one’s position. So things like a degenerative deterioration or a disability or a condition that goes to (ie has an effect on) how one processes information, will raise the possibility of entitlement to advocacy.

The question is not whether a person can make a decision, which is not necessary under the Care Act – but whether they will struggle to be involved. But in the end, an assessment is an assessment and a care plan is a care plan, whether or not someone has engaged with it, or understood it, let alone consented to it.

One really important difference between generic advocacy that might be grant funded, locally, and this kind of special advocacy is that the council is the only organisation that can make the decision about whether Independent Funded Advocacy is triggered; a voluntary agency that is funded to do generic advocacy cannot simply respond to a request for it, with a yes, without that judgement being made by the council or its delegate in a given person’s case.

The regulations do not define substantial difficulty, but they do provide for a set of considerations which cannot be left out of account; it is illegal not to apply those factors when considering someone’s likely engagement with the customer journey through the social care decision-making process, and whether their difficulties have to be seen, objectively, as substantial.

The criteria are as follows: regulation 3

3.  In deciding whether an individual would experience substantial difficulty of the kind mentioned in section 67(4) of the Act (difficulty in understanding information etc.), a local authority must have regard to

(a) any health condition the individual has;

(b) any learning difficulty the individual has;

(c) any disability the individual has;

(d) the degree of complexity of the individual’s circumstances, whether in relation to the individual’s needs for care and support or otherwise;

(e) where the assessment or planning function is the carrying out of an assessment, whether the individual has previously refused an assessment; and

(f) whether the individual is experiencing, or at risk of, abuse or neglect.


It is definitely not right to think of Care Act advocacy as triggered by the same factors as trigger IMCA advocacy under the MCA, or that incapacity is any part of the test for accessing independent funded Care Act advocacy. 

“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.




CASCAIDr’s myth-busting subject matter, dates and time slot – donate now, if you like this list!

Listed below are 26 myths in adult social and health care law – CASCAIDr will be setting out to bust 2 a day (4, some days) via a link on Twitter and Facebook and by way of addition of the link to this table, to WHY these are myths, in writing.

Circulate NOW please, to anyone in your network who needs to know…

and remember this is all for fundraising to get CASCAIDr launched in January to provide free legal advice to the most critically affected by legally illiterate, indefensible decision-making.

You can donate to the right, on a secure donation site, (the MyDonate button) or put your donation specifically towards our myth-busting fundraising event target, here: CASCAIDr’s myth busting fundraising event donation page

All of these myths will be covered orally, allowing for further questions, by way of live 1.5 hr webinar on 8th December, at 11am. Registration for that is free – here is the link – all you need do is put in your email address:

Register for free for Myths Webinar 8 Dec

After the webinar, recordings can be bought for for £50 (no VAT) and all proceeds will go to CASCAIDr, courtesy of Belinda Schwehr, Care and Health Law, whose last webinar, in that capacity, at least, this will be.

If you work in the statutory sector, the tone here may be a bit unsettling but this is after all, free legal analysis for any council or CCG staff finding it difficult to access support with the tricky bits of the legal framework – so go on,  please – CASCAIDr’s aim is true, and we want to help you do it right – so please donate too, even if it feels awkward. Your own job satisfaction surely depends, in the long term, on being smart enough to be able to empower the most needy clients to get a decent care package? #LovingLegalLiteracy is worth it, we promise!

The System

5th Dec


You can’t get social care at all, if you’ve got more than £23,250 in savings
5th Dec


Sorry, we don’t ‘do’ shopping, cleaning, recreation, meal preparation or night time care, any longer…it’s not social care, you see, because everyone has these needs…and there’s benefits for all that stuff



7th Dec


We can tell you, the client, at your review, how much we’re going to cut your budget by, without any other process or negotiation
7th Dec afternoon If you disagree with the budget we offer you, we don’t have to give you any service in the meantime
10th Dec


If you complain, we have to suspend the care planning process until that’s been finished


 Assessment and access to the system

4th Dec


You can’t have an assessment – you couldn’t possibly qualify!
6th Dec


You can’t have an assessment unless you try prevention and re-ablement first (for years!)
7th Dec morning You can’t have an assessment until you actually come here to live, and have arrived!



4th Dec


You can’t get an advocate unless you are mentally incapacitated
7th Dec afternoon You can’t get an advocate if you’ve got anyone else who’s able to speak for you
10th Dec


 You can’t get an advocate because we haven’t got any spare at the moment – let’s just get on with your assessment, shall we?


Carers’ issues 

6th Dec afternoon You can’t count as a carer if your relative is already in a care home, in supported living, in hospital or if they are on Continuing Health Care or s117 Mental Health Act aftercare
9th Dec


If you’re a carer, you will have to make do with a set sum of money for your support needs, because that’s what we’ve always done…
9th Dec


We can cap respite to a set amount per year and charge carers for it


Care planning

12th Dec


We can cap the level of services provided in your own home to whatever the cost of any other way of meeting your needs would be, by any alternative that we can think of…
12th Dec


We can decide whether your care and support needs are met or not, even if we don’t pay for anything after the assessment in which we found you were eligible…
14th Dec


We can change your care plan and cut the funding whenever our own funding gets cut from central government or our own budget looks wobbly


Direct payments issues 

14th Dec


You can only have a direct payment for your services, if it saves us (the council or the CCG) money…
15th Dec morning We can tell you the DP holder that you have to use an agency from our preferred provider list for your direct payment funded services
15th Dec afternoon People’s relatives aren’t allowed to be paid out of a direct payment


Learning disability, epilepsy and autism issues 

11th Dec


If you’re a person with a learning disability, you have to live in shared care to get our services, even if that means moving into a tenancy we’ve secured for you…
11th Dec


If you live in one of the tenancies we can secure for you, you have to abide by house rules about friends coming back for the night
11th Dec


If you have epilepsy, technology will enable your night time needs to be managed
11th Dec


We the purchasers can tell you the provider or the parent whether someone needs specialist skilled staff and define ‘specialist’


Care home Providers’ issues  

13th Dec


Top-Ups aren’t lawful, so you can’t do business with us, the council or the CCG, or ever charge the client or other people anything extra…
13th Dec afternoon We tell you, the provider, what the price of care is, and you have to accept our prices, and sue third parties for any top-ups that dry up!