Community Care Assessments

CHAPTER 3
Community care assessments
3.1 3.2 3.7 3.11 3.12
Introduction The theoretical framework Personalisation The duty to assess the legislative and administrative framework The statutory framework Disabled Persons (Services, Consultation and Representation) Act 1986 s4 The assessment obligation under NHS and Community Care Act 1990 s47(1) The assessment obligation under NHS and Community Care Act 1990 s47(2) Directions England Wales Policy and practice guidance Specic user group assessment guidance Older people specic guidance Mental health service user specic guidance Learning disabled peoples specic guidance Deafblind children and adults specic guidance Disabled childrens specic guidance Disabled parents specic guidance Carers specic guidance Guidance and section 47(4) Delegation of duty to assess Timescale for assessments Reform a common assessment framework The duty to assess: when does it arise? Social services authority awareness of the individual Individuals who may be in need of community care services What of a future need for services? No need to request an assessment Entitlement to services is not relevant continued
3.23 3.27 3.32
3.47 3.49 3.54 3.61 3.64 3.64 3.67 3.68 3.74 3.78
43
44
Community care and the law / chapter 3
3.79 3.80 3.82 3.83 3.85 3.87 3.88 3.91 3.95 3.95 3.108 3.109 3.112 3.113 3.118 3.125
The duty to assess arises where entitlement exists to NHS continuing care The duty to assess arises even when services are discretionary Returning UK nationals Financial circumstances are not relevant The nature of an assessment The assessment and presenting needs Relevant information Assessments prepared by other social services authorities Presenting needs The assessment process The scope of the assessment Self-assessment Screening assessments Steps in data gathering The setting of an assessment User involvement Disputed assessments Persons unable to participate fully in the assessment process Persons unwilling to be involved in the assessment process The section 47(3) referral duty in relation to health and housing needs The NHS referral obligation The housing authority referral obligation The referral obligation does not extend to another local authority on the transfer of ordinary residence The service provision decision: what needs must be satised by the provision of services? The scope of the local authoritys discretion Individual nancial circumstances and the service provision decision Eligibility criteria and eligible needs Consulting on and revising eligibility criteria Resources and the limits of eligibility criteria The reassessment obligation The duty to meet eligible needs Waiting lists and delayed service provision decision Interim arrangements/Physical resource shortages Allocation and funding panels Resources cannot be the sole criterion The Human Rights Act 1998 obligation continued
3.136 3.142 3.149 3.168 3.171 3.173
3.195 3.197
45
3.204 3.222 3.222 3.230 3.237
The critical/substantial bands Family separation and locational need The written record of the assessment Disputed service provision decisions Reassessment and reviews Law Commission proposals
46
Introduction
3.1
The public provision of community care services is dependent in each case on a public authority making an administrative decision that the particular individual could not only benet from the service, but also that the service should be provided. The decision-making procedure is known as the assessment process. The assessment process commences with the potential service user coming to the notice of the social services authority and ends with a decision as to whether or not he or she is entitled to services. If services are required, the next stage is the preparation of a care/support plan which describes and quanties the services and species how (and by whom) they are to be delivered. This chapter is concerned with social services assessments and the following chapter with the support plans. The duty to assess carers is considered separately in chapter 16. The NHS duty to assess for NHS continuing healthcare is considered in chapter 14.
The theoretical framework

3.2
Assessment and care planning are central to community care law. They are the legislative response to the social services resource problem. As Phyllida Parsloe commented when the key community care reforms took effect in 1993:1
The NHS and Community Care Act backs a whole eld of horses, with the two front-runners being user choice and scarce resources. Local authorities are apparently expected to give equal weight to empowering users and keeping within their own budget.
3.3
The assessment process therefore seeks to reconcile the demand for services with the resources available. This is not a new problem, or one unique to community care. Over 25 years ago in his seminal analysis, Michael Lipsky2 charted the growth of street-level bureaucracies (legal aid lawyers, social workers, healthcare workers and so on). In his view their essential role is:
. . . to make decisions about other people. Street-level bureaucrats have discretion because the nature of service provision calls for human judgment that cannot be programmed and for which machines cannot substitute . . . It is the nature of what we call human services that the unique aspects of people and their situations will be apprehended by public service workers and translated into courses of action responsive to each case within (more or less broad) limits imposed by their agencies.3
1 2
Making a bid for fair play, Community Care, 5 August 1993. M Lipsky, Street-Level Bureaucracy, Russell Sage Foundation, 1989: the term streetlevel bureaucracies encompasses schools, police and welfare departments, lower courts, legal services ofcers, and other agencies whose workers interact with and have wide discretion over the dispensation of benets or the allocation of public sanctions (p xi). M Lipsky, Street-Level Bureaucracy, Russell Sage Foundation, 1989, p162.

3.4
47
Lipsky argued that for this function to be exercised effectively, such employees had to be accountable both to their employers preferences and to their clients claims and that in order to maintain client condence (given these twin roles) it was essential that the exercise of discretion was perceived as being independent: this in turn necessitated that street-level bureaucrats be seen to act as professionals.4 The organisational response to this quasi-independence has been to make:
. . . street-level bureaucrats more accountable by reducing their discretion and constraining their alternatives. [To] write manuals to cover contingencies. [To] audit performance of workers to provide retrospective sanctions in anticipation of which it is hoped future behaviour will be modied.5
3.5
This trend continues, with Seddon6 noting in 2008 that staff were not given time to reect on and shape practice, develop good working relationships with others and explore the communities in which they work:
Like the police service, adult social care is designed as a bureaucracy to feed the regime, not a service to meet older peoples needs. The regime constrains method. It is a bureaucracy of call centres, functional specialisation, activity targets, budget management, form-lling and counting, designed according to the requirements of the regime. And the bureaucracy is cemented with information technology, all of which has been designed from the point of view of electronic data management and reporting, not solving peoples problems.
3.6
Many community care practitioners would identify with this analysis. The development of managerialism7 within social services has unquestionably undermined the ability of social workers to carry out needs led assessments and instead captured them within the bureaucratic/rationing regime that is adult care today.8 The Commission for Social Care Inspection (CSCI) concluded in 2008 that demand was often managed by tightening procedural guidelines to reduce scope for interpretation by front-line workers.9 Thus increasingly assessments are budget or audit led exercises whose primary purpose is to conform to internal administrative imperatives, rather than the empowerment of service users and their carers. The cost of the increasing bureaucratisation of adult social care is high. In 200910 the assessment and care planning process absorbed over 12 per cent of the entire social services expenditure in England 2.06 billion.10
4 5 6 M Lipsky, Street-Level Bureaucracy, Russell Sage Foundation, 1989. M Lipsky, Street-Level Bureaucracy, Russell Sage Foundation, 1989. J Seddon, Systems thinking in the public sector: the failure of the reform regime . . . and a manifesto for a better way, Triarchy Press, 2008 as described by N Andrews, D Drifeld and V Poole (2009) All Together Now, Quality in Ageing and Older Adults Vol 10 Issue 3 pp 12 23 at 15. 7 See in particular, J Harris, The Social Work Business, Routledge, 2003. 8 B Hudson, Captives of Bureaucracy (2009) Community Care 31 (9 April 2009). 9 The State of Social Care in England 20067 CSCI 2008, p23. 10 Information Centre (2011) Personal Social Services Expenditure and Unit Costs England 200910. Leeds: The Information Centre see table 2.3.
48
Personalisation
3.7
3.8
3.9
3.10
Personalisation, despite being a creature of policy not law11, represents a signicant departure from the pre-existing model of assessment and service provision. It has been promoted with an evangelical fervour. At the end of 2007, six Government departments, together with local authority bodies, the NHS, regulators and representatives of independent sector providers all signed up to an historic protocol Putting People First: a shared commitment to the transformation of adult social care.12 The Coalition Government is maintaining the drive towards personalisation,13 and it has been widely endorsed by the voluntary sector and providers.14 It is also seen by some as an important and positive step towards independent living. The aim is to increase personal choice and independence through the allocation of a personal budget (following self/supported assessments (see para 3.100 below)) to service users who are eligible for care support enabling them to determine how to spend it, generally referred to as selfdirected support. In theory this marks a welcome shift from service-led decisions, often reliant on poor quality care services, to a panoply of choice to nd innovative ways to fulll desired outcomes. Personalisation also encourages a preventative approach to service provision with universal services available to all regardless of eligibility. This dramatic reconguration, which it is claimed will enable social workers to become advocates and brokers rather than assessors and gatekeepers,15 is to be achieved within current resource constraints. What this means is eshed out more by the current English Prioritising Needs guidance (see para 3.30 below) and analysed below in the context of assessments and eligibility for service provision. To criticise a social care system which promotes independence, well-being and dignity would be heresy, but its implementation in the face of swingeing public sector cuts and a methodology of the kind characterised by Seddon (see para 3.5 above) is problematic. As CSCI observed the trend towards tightly circumscribed council help with social care needs does not sit well with the personalisation agenda and with wider concepts of health and wellbeing.16 At the heart of the dilemma is the issue of resources, and the extent to which the courts are prepared to defer to the problems of government (central and local) in ensuring that the states nite resources are applied equitably. An analysis of the courts approach to this question is provided at para 3.168 below.
11 Though given limited legal expression in Disabled Peoples Right to Control (Pilot Scheme)(England) Regulations 2010 (see chapter 4). 12 Department of Health (2007) Putting People First: a shared vision and commitment to the transformation of Adult Social Care. 13 See, for instance, Department of Health (2010) A vision for adult social care: capable communities and active citizens. 14 Think local, act personal: a sector-wide commitment to moving forward with personalisation and community-based support 2011 at www.thinklocalactpersonal.org.uk/_library/ Resources/Personalisation/TLAP/THINK_LOCAL_ACT_PERSONAL_5_4_11.pdf 15 LAC (2008) 1 Transforming Social Care. 16 The State of Social Care in England, 20067, Executive Summary, CSCI 2008 p32.
49
The duty to assess the legislative and administrative framework

3.11
The community care assessment obligation, although underpinned by statute, is eshed out by directions and considerable volumes of guidance.
The statutory framework

3.12
Arguably social services authorities have always been under a public law obligation to assess potential community care service users. Where a council has a duty to provide services for people if satised they are necessary,17 there must be a concomitant obligation on that council to have a procedure for making determinations as to when, in any given case, the duty crystallises.
Disabled Persons (Services, Consultation and Representation) Act 1986 s4

3.13
Because of doubt about the extent of this obligation, in relation to the provision of services under Chronically Sick and Disabled Persons Act (CSDPA) 1970 s2, the Disabled Persons (Services, Consultation and Representation) Act (DP(SCR)A) 1986 s4 gave to disabled people (and their carers) the right to request an assessment. The circular accompanying the 1986 Act (LAC (87)6) explained the position thus:
3. However, s2(1) does not make it explicit whether a local authority has a duty to determine the needs of a disabled person. It was suggested in the course of debates in Parliament on the Disabled Persons (Services, Consultation and Representation) Bill that as the duty to make arrangements could be interpreted as applying only after the local authority are satised that such arrangements are necessary in order to meet particular needs, local authorities might refuse to come to a view as to what are those needs as a means of avoiding the obligation to make arrangements. It has never been the Governments view that subsection 2(1) should be interpreted in that way, and it is clear that this is shared by the vast majority of local authorities. However, it was agreed that the matter should be put beyond doubt. 4. Section 4 of the 1986 Act accordingly makes it clear that local authorities have a duty to decide whether the needs of a disabled person call for the provision of services under section 2 of the 1970 Act, if they are requested to do so by a disabled person (section 4(a)) or by anyone who provides care for him or her (section 4(c)) in the circumstances mentioned in section 8 of the 1986 Act.
3.14
Section 4 of the 1986 Act provides:

When requested to do so by (a) a disabled person,
17 Chronically Sick and Disabled Persons Act (CSDPA) 1970 s2(1).
50
Community care and the law / chapter 3 (b) . . .18 (c) any person who provides care for him in the circumstances mentioned in section 8,19 a local authority shall decide whether the needs of the disabled person call for the provision by the authority of any services in accordance with section 2(1) of the 1970 Act (provision of welfare services).
3.15
3.16
Although the section 4 duty remains, it is largely a historical curiosity: now effectively subsumed by the subsequent legislation. The right to request an assessment proved to be an unsatisfactory mechanism to access services under the CSDPA 1970, as it required people to know of the existence of their right to services before they could access those services. As most people did not know of their rights under that Act, they were unable to make the necessary request under DP(SCR)A 1986 s4. What was required, therefore, was a duty to assess regardless of any request from the potential service user: a duty that extended not only to services under CSDPA 1970 s2, but to all services under all the community care statutes. The intention to create such a general duty to assess was announced in the 1989 white paper Caring for People (Cm 849) which at para 3.1.3 stated that social services authorities would be responsible for:
. . . carrying out an appropriate assessment of an individuals need for social care (including residential and nursing home care), in collaboration as necessary with medical, nursing and other agencies, before deciding what services should be provided.
3.17
The effect of the changes has been to make social services departments the gate-keepers, controlling access to state-supported community care services. Such services can only be provided at public expense after an assessment of need has occurred20 and a decision has been made by the social services authority that, having regard to the assessment of need, services should be provided. Despite government rhetoric distancing itself from this gate-keeping role21, the reality shows the trend moving in the opposite direction. The Care Quality Commission (CQC) in its rst report in 2010 found that 72 per cent of English councils limited care support to those with critical and substantial needs.22
The assessment obligation under NHS and Community Care Act 1990 s47(1)
3.18
National Health Service and Community Care Act (NHSCCA) 1990 s47(1) is the general assessment duty presaged by the white paper. It provides:
18 This provision, which related to requests by authorised representatives, has not been brought into force. 19 That is, someone who provides regular and substantial care for the disabled person see para 16.12. 20 Except in emergencies: NHSCCA 1990 s47(5), see para 4.114. 21 See, for instance, the executive summary of Department of Health (2005) Independence, Well-being and Choice, and LAC (2008) 1 Transforming Social Care. 22 Care Quality Commission (2010), The state of health care and adult social care in England: key themes and quality of services in 2009, HC 343.
51
(1) Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority (a) shall carry out an assessment of his needs for those services; and (b) having regard to the results of that assessment, shall decide whether his needs call for the provision by them of any such services.
3.19
Section 47(1) obliges social services authorities to carry out an assessment of an individuals needs for community care services even where the individual has made no request for an assessment. All that is required in order to trigger the assessment obligation is that:
a) the individuals circumstances have come to the knowledge of the authority; b) he or she may be in need of community care services.
3.20
The NHSCCA 1990 s47(1) duty lies at the very centre of all community care law it is central to virtually all social services community care responsibilities and the nature of this obligation is considered in detail at para 3.87 and in the succeeding sections of this chapter.
The assessment obligation under NHS and Community Care Act 1990 s47(2)
3.21
In addition to the section 47(1) assessment obligation, section 47(2) states:

If at any time during the assessment of the needs of any person under subsection (1)(a) above it appears to a local authority that he is a disabled person, the authority (a) shall proceed to make such a decision as to the services he requires as is mentioned in section 4 of the Disabled Persons (Services, Consultation and Representation) Act 1986 without his requesting them to do so under that section; and (b) shall inform him that they will be doing so and of his rights under that Act.
3.22
Detailed practice guidance issued by the Department of Health in its Care Management and Assessment: a practitioners guide23 (referred to in this chapter as the 1991 practice guidance) advised that NHSCCA 1990 s47(2) entitled all disabled people to a comprehensive assessment regardless of the complexity of their needs. This was, however, incorrect, as Carnwath J explained in R v Gloucestershire CC ex p RADAR.24 In his opinion the Department of Health had misunderstood the effect of section 47(2). The subsection is, in effect, merely a modest provision aimed at agging up the duty to provide services under CSDPA 1970 s2 as Lord Clyde explained in R v Gloucestershire CC ex p Barry:25
So far as the twofold provision in s47(1) and (2) is concerned the obligation on the local authority introduced by s47(1) was to carry out an assessment
23 Department of Health Social Services Inspectorate, 1991. 24 (199798) 1 CCLR 476 at 484, 21 December 1995, QBD. 25 [1997] 2 WLR 459, (199798) 1 CCLR 40, HL.
52
Community care and the law / chapter 3 on its own initiative and the separate provision made in subs (2) cannot have been intended merely to achieve that purpose. It seems to me that there is sufcient reason for the making of a distinctive provision in sub-s (2) in the desire to recognise the distinctive procedural situation relative to the disabled. But it does not follow that any distinction exists in the considerations which may or may not be taken into account in making an assessment in the case of the disabled as compared with any other case.
Directions
3.23
NHSCCA 1990 s47(4) empowers the secretary of state to give directions as to the form community care assessments should take.26 As noted in paras 1.55 and 3.45, in R (B and H) v Hackney LBC27 the judge suggested that the terms of section 47(4) had the effect of limiting the binding nature of the policy guidance issued in respect of the section 47(1) assessment obligation. This interesting argument has not, however, been adopted by any other court and is at variance with a number of Court of Appeal decisions.
England
3.24
Directions have been issued in England by the Department of Health, as the Community Care Assessment Directions 2004:28 Direction 2 of which requires social services authorities, when undertaking a community care assessment, to:
consult the person to be assessed; consider whether the person has any carers and, if so, also consult them if the authority thinks it appropriate; take all reasonable steps to reach agreement with the person and, where they think it appropriate, any carers of that person, on the community care services which they are considering providing to meet his or her needs; provide information to the person and, where they think it appropriate, any carers of that person, about the amount of the payment (if any) which the person will be liable to make in respect of the community care services which they are considering providing to him or her.
3.25
The circular that accompanies the Directions (LAC (2004)24)29 provides further information about their intended effect and is considered further in the context of carers at para 16.25 below.
26 See also Carers (Recognition and Services) Act 1995 s1(4), where a similar provision applies. 27 [2003] EWHC 1654 (Admin). 28 26 August 2004; at www.dh.gov.uk/en/Publicationsandstatistics/publications/ publicationslegislation DH_4088476. 29 Accessible at www.dh.gov.uk/en/Publicationsandstatistics/Lettersandcirculars/ LocalAuthorityCirculars/AllLocalAuthority/DH_4088369
53
Wales
3.26
It appears30 that no equivalent directions have been issued in Wales. In the absence of directions NHSCCA 1990 s47(4) provides that assessments are to be carried out in such manner and take such form as the local authority considers appropriate. It follows that the adequacy of an assessment in any given case will depend upon its compliance with the relevant principles of public law, including: 1) that the aim of the process adopted by the social services department must be to determine the section 47(1)(b) question, ie, which of the applicants needs call for the provision of services. This therefore requires the local authority to: (a) gather sufcient data about the applicant in order to make an informed decision about what his or her needs are; and (b) have some general standard or formula by which it can make consistent decisions as to when needs do and do not call for services; 2) that the process must be conducted fairly ie, ensuring the individual understands what is occurring and has a full opportunity to contribute and respond to any third party evidence; that the process be nondiscriminatory and completed within a reasonable period of time, etc; 3) that all relevant matters are taken into account ie, central and local government guidance; the views of important persons (the service user, relevant professionals, carers and friends, etc) who have relevant information to the section 47(1)(b) judgment.
Policy and practice guidance

3.27 3.28
A plethora of guidance exists concerning the assessment process: some of it of general application and some of it specic to certain user groups. The original policy guidance accompanying the community care reforms contained only six paragraphs concerning the assessment process.31 Although this was buttressed by the 1991 practice guidance, the lack of rm policy guidance, combined with severe nancial pressures on local authorities, led to a fragmented system which was, in the opinion of an inuential 1996 Audit Commission report, unfair and extremely confusing for service users. The report commented:
The effect of all this is to produce a maze of different criteria which are complex and difcult for people to understand. People who qualify for care in one authority may not qualify in another. The price of freedom of local decision-making is considerable variation in access to services between areas. Authorities may be able to reduce the worst effects of the inequities that result by comparing approaches and, here again, guidance may be useful.32
30 The Welsh Government has failed to keep track of what directions it has issued prior to 2005 see para 1.38 above. 31 Community Care in the Next Decade and Beyond: policy guidance, HMSO, 1990, paras 3.153.20. 32 Balancing the Care Equation: Progress with Community Care, HMSO, 1996, para 32.
54
3.29
The government in England, in its 1998 white paper Modernising Social Services accepted these criticisms and committed itself to setting national standards and to dening service models for specic services or care groups.33 The product of this commitment in England and Wales has been a series of national service frameworks (NSFs)34 and (particularly in England) other guidance concerning the assessment of various care groups. The relationship between the various guidance documents is depicted in diagram 2 below.
33 Cm 4169, TSO, 1998 at para 2.34. 34 The principle NSFs of direct relevance to social services are those that relate to (1) older people (see para 19.3 below), (2) mental health (see para 20.3 below) and (3) children (see para 23.63 below). See generally para 1.6 above.

3.30
55
3.31
Additionally the government undertook to introduce greater consistency in the system for deciding who qualies for community care services. This commitment produced in 2002 generic policy and practice guidance on Fair Access to Care Services (FACS) which has now been updated (and superseded) by 2010 policy guidance entitled Prioritising need in the context of Putting People First35 (Prioritising Needs Guidance). A similar approach was taken by the Welsh Assembly Government in Wales, where the equivalent guidance to FACS is known as the Creating a Unied and Fair System for Assessing and Managing Care (UFSAMC) 2002.36 All community care assessments should be undertaken in accordance with the Prioritising Needs Guidance in England and the UFSAMC guidance in Wales (both statutory guidance issued under s7 Local Authority Social Services Act 1970 (see para 1.46)). This guidance does not replace all the earlier guidance (for instance the 1991 practice guidance). It is supplemented in England by further practice guidance, Facts about FACS 2010: A guide to Fair Access to Care Services issued by the Social Care Institute for Excellence (SCIE)37, and by specic user group guidance.
Specic user group assessment guidance

3.32
In addition to complying with the Prioritising Needs Guidance in England and the UFSAMC guidance in Wales, social services are also required to take into account user group specic guidance which can be broken down into the various categories listed below. The guidance relating to the assessment of older people and those with dual sensory impairment is considered briey in this chapter, whereas the guidance specically relating to people with mental health problems, learning disabilities, disabled children and carers is dealt with in the subsequent chapters that deal with these client groups.
Older people specic guidance

3.33
The specic guidance concerning the process by which older people should be assessed comprises:

3.34
NSF for Older People, March 2001;38 Single Assessment Process (SAP) Policy Guidance, 2002.39
Standard Two of the English NSF40 outlined the SAP which had been rst
35 Department of Health (2010) Prioritising need in the context of Putting People First: A whole system approach to eligibility for social care. Guidance on Eligibility Criteria for Adult Social Care, England 2010. 36 NAFWC 09/2002 http://wales.gov.uk/pubs/circulars/2002/english/NAFWC09 02Guidance-e.pdf?lang=en. 37 SCIE, Adult Services Guide 33 at www.scie.org.uk/publications/guides/guide33/les/ guide33.pdf. 38 Strategy for Older People in Wales (January 2003). 39 UFSAMC (Wales) 2002 incorporates the key elements of both FACS and SAP. 40 Strategy for Older People in Wales (January 2003) para 33 conrmed that the NSF for older people in Wales would build upon the unied assessment guidance already issued. A summary version only is available at the time of writing.
56
proposed in The NHS Plan.41 The SAP for older people would (the NSF stated at para 2.27) ensure that:

3.35
a more standardised assessment process is in place across all areas and agencies; standards of assessment practice are raised; older peoples needs are assessed in the round.
3.36
3.37
Guidance42 on the SAP was issued to health and social services bodies and required that they had fully integrated commissioning arrangements and integrated provision of services including community services and continence services by April 2004.43 In Wales the UFSAMC 2002 policy guidance includes the equivalent guidance. The raison dtre of the process is both organisational in compelling health and social services bodies to work together in assessing and providing care services and cultural to provide what the guidance calls a person-centred approach. The aim is to ensure that older people are not subjected to ineffective (and inefcient) multiple assessments. Such assessments cannot in fact be unied in the legal sense, unless the agencies have entered into formal partnership arrangements under NHSA 2006 ss7576 and 256257 (see para 13.124 below). The increasing tendency in practice for the resource allocation selfassessment questionnaire to form the core of the assessment process (see para 3.96 below), together with problems of non-integrated IT systems and anxieties about condentiality have resulted in SAP falling into disuse. Nevertheless it is still current statutory guidance and is useful in setting out a reasonably comprehensive list of the domains applicable to older people (see para 3.100 below).
Mental health service user specic guidance

3.38
The specic guidance concerning the process by which people with mental health needs are assessed comprises:
NSF for Mental Health, September 1999;44 Effective Care Co-ordination in Mental Health Services Modernising the Care Programme Approach, 1999;45 Refocusing the Care Programme Approach: Policy and positive practice guidance, 2008.46
41 Department of Health White Paper, The NHS Plan Cm 4818-I, 2000, para 7.3. 42 In particular HSC 2002/001 and LAC (2002)1, Guidance on the Single Assessment Process for Older People, January 2002. 43 Updated implementation guidance and advice on off the shelf assessment tools continues to be provided by the Department of Health, accessible at www.dh.gov.uk/ PolicyAndGuidance/HealthandSocialCareTopics/ SocialCare/ SingleAssessmentProcess/fs/en. 44 Adult Mental Health Services: A National Service Framework for Wales, April 2002. 45 Adult Mental Health Services in Wales: Equity, Empowerment, Effectiveness, Efciency: A Strategy Document, 2001. 46 Adult Mental Health Services: Stronger in Partnership 2008.

3.39
57
This guidance is considered at paras 20.3 and 20.7 below.
Learning disabled peoples specic guidance

3.40
The specic guidance concerning the process by which people with learning disabilities should be assessed comprises:

3.41
Valuing people: a new strategy for learning disability for the 21st century, 2001; Valuing people: a new strategy for learning disability for the 21st century: implementation, LAC (2001)23.47
This guidance is considered at para 18.5 below.
Deafblind children and adults specic guidance

3.42
Specic statutory guidance in the form of Social Care for Deafblind Children and Adults48 exists in recognition of the particular needs of this client group. The guidance includes the following useful requirements in relation to assessment and care planning. Councils must ensure that:
assessments are carried out by specically trained individuals/teams and include communication, one-to-one human contact, social interaction and emotional well-being, support with mobility, assistive technology and rehabilitation; assessments also take account of needs that will occur in the near future to maximize early recognition and support; services to deafblind people are appropriate bearing in mind that services designed for single rather than dual impairment may not be; deafblind people are able to access specically trained one to one support workers if needed49
Disabled childrens specic guidance

3.43
The right of disabled children to be assessed stems primarily from the Children Act (CA) 1989, although they also have certain rights under the community care regime (see para 23.61 below). However, the Prioritising Needs and UFSAMC are not of direct application: the specic guidance (considered further at para 23. 15 below ) of relevance being:
Framework for the Assessment of Children in Need and their Families, 2000 policy guidance;50 Assessing Children in Need and their Families, 2000 practice guidance.
47 In Wales, see Learning Disability Strategy: Section 7 guidance on service principles and service responses, 2004 and Statement on policy and practice for adults with a learning disability, 2007. 48 Department of Health LAC(2009)6: the equivalent Welsh statutory guidance: NAWC 10/01 Social Care for Deafblind Children and Adults. Supplementary practice guidance: Moving Forward: Services for Deafblind Children and Adults WAG 2008. 49 Paras 2125 in Welsh and English guidance. 50 In Wales, Framework for the Assessment of Children in Need and their Families, 2001 policy guidance.
58
Disabled parents specic guidance

3.44
3.45
Specic 2007 guidance concerning the needs of learning disabled parents exists as Working with parents with a learning disability.51 Other good practice guidance (as outlined below) exists concerning the needs of all parents with a disability. The important point being that the presenting needs of a disabled parent will include the need to discharge his or her parental responsibilities. Accordingly if, for instance, as a result of an impairment a parent is unable to get his or her child to school, this need should, prima facie, be seen as a presenting need of the parent and not a need of the child under the CA 1989. Unfortunately, in this context, two major impediments affect disabled parents. They may face doubts about their parenting ability, rather than receiving the additional support they need; and they may experience signicant problems of poor coordination between adult and children services. The CSCI52 referred to a gap between services through which disabled parents fell, and found this was exacerbated by the administrative separation of children and adult social care services as a result of the CA 2004 (see chapter 23). There are statutory duties on both adult and childrens services in this context, and no hard and fast answers as to which arm of the local authority should lead. The Welsh unied guidance simply says53 that local authorities should ensure that they offer a holistic and equitable approach to disabled parents and their children, and they should be similarly provided with help irrespective of whether they approached the services through a child care or adult care route. Research54 suggests that addressing the parents needs, including the need to discharge their parenting role will go at least some way to safeguarding and promoting the welfare of the child. In the course of assessing a disabled adult, councils should recognise that adults, who may have parenting responsibilities for a child under 18 years, may require help with these responsibilities.55 Supporting disabled parents and parents with additional support needs, a SCIE resource guide56 provides useful advice on good practice in developing local protocols as recommended in the guidance. The obligations owed to children in need are considered in chapter 23.
Carers specic guidance

3.46
Carers assessments are not governed by NHSCCA 1990 s47 and accordingly the guidance outlined above is not of direct relevance. Practice
51 Department of Health (2007) Good practice guidance on working with parents with a learning disability. 52 Supporting disabled parents: a family or fragmented approach? CSCI 2009. 53 UFSAMC 2002, annex 1, para 6. 54 Olsen and Tyers, Think parent: disabled adults as parents, National Family and Parenting Institute 2004. 55 Prioritising Needs guidance, para 26. 56 J Morris and M Wates, Supporting disabled parents and parents with additional support needs, adult services resource guide 9, SCIE 2007.
59
guidance on carers assessments is provided in both England and Wales as The Carers and Disabled Children Act 2000: a practitioners guide to carers assessments (2001) and additionally in England by a further guide issued by the Social Care Institute for Excellence (SCIE).57 These are considered at para 16.8 below.
Guidance and section 47(4)

3.47
3.48
As has noted above (see paras 1.55 and 3.23), in R (B and H) v Hackney LBC58 Keith J held that policy guidance issued under Local Authority Social Services Act (LASSA) 1970 s7(1) was not strong guidance in relation to the assessment process under NHSCCA 1990 s47. In his view, since section 47(4) states that in the absence of directions local authorities are entitled to conduct assessments as they deem appropriate it then logically follows that it is only a direction that can materially restrict this latitude. If this controversial view is correct, it conicts with other High Court decisions and the Court of Appeal in the Gloucestershire judgment (albeit that this argument was not considered in these cases). It would also downgrade the force of the key Prioritising Needs, SAP and UFSAMC guidance (see para 3.30 above) although only so far as this guidance relates to the actual assessment process under section 47 (ie information gathering and the service provision decision): the guidance would remain strong policy guidance in so far as it relates to care planning and service provision. The courts do not insist (save perhaps in cases involving severe care needs decisions see para 3.227 below) that practitioners stick scrupulously to their designated assessment documentation: in the words of McCombe J59 whatever boxes are or are not ticked in the assessment form and in the care plan documents, local authorities will provide services to meet eligible needs as they perceive them to be.
Delegation of duty to assess

3.49
The duty to assess under NHSCCA 1990 s4760 is a social services function (for the purposes of LASSA 1970 Sch 1, see para 1.3 above). There is no general power for social services authorities to delegate this function to other bodies.61 The only situations in which it can be legally delegated, are (1) where the social services authority has entered into a formal partnership arrangement with an NHS body (either a primary care trust (PCT) or an NHS trust under the National Health Service Act (NHSA) 2006
57 58 59 60 61
SCIE practice guide to the Carers (Equal Opportunities) Act 2004. [2003] EWHC 1654 (Admin). R (F, J, S, R and others) v Wirral BC [2009] EWHC 1626 (Admin) at para 74. Or indeed, under the Carers Acts see para 16.46 below. R v Kirklees MBC ex p Daykin (199798) 1 CCLR 512 at 525D, 26 November 1996, QBD.
60
3.50
3.51
3.52
3.53
ss7576 and 256257; or under a pilot programme established by the secretary of state.62 (see para 13.124). In the absence of such partnership arrangements, there is currently no express power for the authority to delegate the function to another agency. However, the Localism Bill (if enacted) may change the landscape of local authority powers (see para 3.53 below). In practice authorities often request third parties to carry out key tasks in the assessment for instance, an occupational therapist employed by an NHS trust in assessing the need for home adaptations. In such cases, an authority may be, to all intents and purposes, bound by that third partys view on need especially if it has expertise which the social services authority lacks63 (see also para 3.143 below). A not uncommon situation where key assessment functions are in effect delegated, concerns the assessment of detained drug and alcohol misusers wishing to attend community rehabilitation facilities: frequently key aspects of such assessments are carried out by expert probation ofcers on behalf of social services (see para 23.16 where this is further considered). It has been suggested that local authorities might be able to delegate their assessment functions by virtue of Local Government (Contracts) Act 1997 s1, which empowers councils to contract with third parties to discharge certain of their functions. Section 4(3) of the Act, however, places a signicant limitation on such delegation, restricting its application to contracts for the provision or making available of services. In the context of the 1997 Act, which in section 1 refers to assets or services, or both, (whether or not together with goods) it seems unlikely that an assessment could be deemed a service. It is also doubtful that an assessment could be described as the making available of services: it is a qualitatively different function namely the decision as to whether or not there is any need to make any such arrangements. Such an interpretation is strongly supported by the relevant policy guidance.64 The general powers of local authorities, as currently set out in clause 1 of the Localism Bill, would enable councils to act as individuals except where there is an express restriction. This would signicantly change the administrative law principle that public authorities as creatures of statute can only act pursuant to specic powers and duties; and would enable, inter alia, the delegation of the carrying out of assessments.
62 The Contracting Out (Local Authorities Social Services Functions) (England) Order 2011 SI No 1568 permitted delegation of social services functions in England in very limited conditions namely where the secretary of state has established an adult social work practice pilot scheme; it also permits the delegation of community care assessments where a pilot in control site has been established provided the local authority is one listed in the Schedule to the Community Care Services: Disabled Peoples Choice and Control (Pilot Scheme) (England) Directions 2010 (see para 4.128 above). 63 This will not invariably be the case, particularly if the opinion only addresses one particular aspect of an individuals circumstances see eg R (Goldsmith) v Wandsworth LBC [2004] EWCA Civ 1170, (2004) 7 CCLR 472. 64 See eg SAP 2002 policy guidance, p16; the UFSAMC 2002 policy guidance, p10 fn 2 and the combined policy guidance under the 2000 and 2004 Carers Acts, para 45.
61
Timescale for assessments

3.54
3.55
3.56
3.57
There is no general statutory timescale for the completion of community care assessments although such timescales have been prescribed in policy guidance for assessments under the CA 1989 (see para 23.18) and in directions under the Community Care (Delayed Discharge etc) Act 2003 (see para 5.29). As a matter of statutory interpretation, where a provision is silent on the time for compliance, the law implies that it be done within a reasonable time, and that what is a reasonable time is a question of fact, depending on the nature of the obligation and the purpose for which the computation is to be made.65 The Prioritising Needs guidance requires a range of information about the assessment and care planning process, including related time-scales, to be made available in a range of languages and formats66. When considering complaints about delayed assessments, the local government ombudsman has had regard to the timescales set out in the relevant local authoritys charter67 and such published information would appear to be an appropriate starting point for a review. In 2011 the ombudsman expressed the view that a reasonable time for an assessment should normally be between four and six weeks from the date of the initial request68 and in a 2006 complaint he held that a three-month delay in assessing for adaptations was simply unacceptable (the Councils own targets for assessments were one month for urgent cases and two months for others).69 Authorities frequently adopt a grading scheme for assessments with a view to prioritising the most urgent. While the idea of a scheme setting priorities for assessment is to a degree anomalous (given that in general the object of assessment is to identify the extent and urgency of need), the local government ombudsman has accepted that such a system does not seem unreasonable.70 LAC (93)2 (although primarily aimed at the particular needs of persons who misuse alcohol and/or drugs) makes a number of observations of more general application to assessments.71 It supports the idea of some assessments being carried out faster than others, stating that authorities should have criteria for determining the level of assessment that is appropriate to the severity or complexity of the need (at para 14).
65 See eg Re North ex p Hasluck [1895] 2 QB 264; Charnock v Liverpool Corporation [1968] 3 All ER 473. 66 Para 80. 67 See eg complaint no 01/C/15434 against South Tyneside Metropolitan BC, 20 January 2003, where the Charter stipulated 21 days for the completion of community care assessments. 68 Local Government Ombudsman (2011) Fact Sheet Complaints about councils that conduct community care assessments at www.lgo.org.uk/publications/fact-sheets/ complaints-about-community-care-assessments/ 69 Complaint no 05/C/07195 against Northumberland CC, 18 April 2006, paras 7, 29 and 30. 70 Para 33, Complaint no 00/B/00599 against Essex CC, 3 September 2001. 71 See eg paras 2627 concerning the applicability of its observations to the needs of homeless people.
62
3.58
It further advocates the need for authorities to develop fast-track assessment procedures (at paras 1620). The circular is considered in detail in chapter 22. The local government ombudsman has investigated a considerable number of complaints concerning delayed assessments relating to home adaptations (see paras 9.121 and 15.102 below). By way of example, a 1996 report found seven months for an assessment and a further four months delay by the authority in processing the disabled facilities grant approval to be maladministration.72 In this complaint the local ombudsman reiterated her view that if the authority has a shortage of occupational therapists, it should not use them for assessment purposes if this will result in unreasonable delay, stating, [i]f such expertise is not available, councils need to nd an alternative way of meeting their statutory responsibilities. While the local government ombudsman has approved in principle the idea of prioritising certain assessments, she has criticised the way such a scheme is administered. In a 1995 complaint73 she stated:
The Councils system of priorities is over-simple. Within the category of complex cases there is no provision for relatively simple solutions to tide people over until a full assessment can be made. Also, there will be cases which cannot be described as emergencies but need to be dealt with more urgently within the complex category than others. The Councils oversimple system of priorities resulted in a failure to meet [the complainants disabled daughters] needs promptly and I consider that to be an injustice resulting in maladministration.
3.59
3.60
Where there is unreasonable delay in assessing (or an intimation that there will be), the complaints process may be invoked (see para 26.8 below). The effect of this,74 is that some element of a xed timescale is introduced into the process. The complainant should emphasise (if it be the case) that the duty to assess commenced when his or her potential needs rst came to the notice of the authority, rather than at the time of any later request being made for an assessment. In cases of urgency councils have power to provide services before completing the assessment. The obligation to consider doing so will have particular force if the urgent need has been exacerbated by the authoritys delay. Section 47(6) provides that if such services are provided without an assessment, as soon as practicable there-after, an assessment of his needs shall be made in accordance with the preceding provision of this section. The provision of support pursuant to the section 47(5) power is further considered at para 4.114 below.
Reform a common assessment framework

3.61
There is considerable anecdotal evidence to suggest that the proliferation of different assessment regimes for different client groups has created a
72 Complaints nos 94/C/0964 and 94/C/0965 against Middlesbrough DC and Cleveland CC. 73 Complaint no 93/C/3660 against Rochdale Metropolitan BC. 74 See para 26.22 below
63
3.62
3.63
complex and confusing assessment bureaucracy, dramatically increasing the time spent by care managers in form lling, signicantly reducing their face to face contact with service users and doing little or nothing to improve the quality of services or decision making. Arguably, much of the bureaucracy that now accompanies assessments is driven by a need to satisfy statistical returns to the Department of Health or Welsh Government rather than to maximise the quality of the support provided for individual service users. The white paper, Our Health, Our Care, Our Say (January 2006) proposed to develop a new assessment process, to be known as the Common Assessment Framework (CAF) for Adults. The Department of Health in its statements concerning CAF75 accepts that having different assessment regimes for different client groups causes difculties . . . particularly for individuals with multiple needs who have to negotiate the different systems. It suggests that a CAF would overcome many of these problems, particularly if geared towards self-determination and planning for independence. The statement acknowledges that there has been signicant investment in SAP and that this investment must not go to waste. It proposes to satisfy this objective by ensuring that the momentum behind the implementation of SAP, including developing and implementing e-SAP solutions, continues in local communities presumably being harnessed by the new CAF. Following consultation CAF is currently being developed and tested using demonstrator sites (led by adult social care authorities, but involving health services, mental health trusts, housing support and IT suppliers). Sites were chosen, as SCIE puts it, to lead the way in creating a more efcient and transparent system of information-sharing, to avoid duplication in assessments and ensure that people receive the best quality care and support76 They will continue until March 2012 and be evaluated nationally.
The duty to assess: when does it arise?

Social services authority awareness of the individual
3.64
The rst requirement for the triggering of the duty to assess is that the person in need comes to the knowledge of the social services authority. It is the authority that must have the requisite knowledge, rather than the individual social services department. By way of example, in the case of a unitary authority (which has responsibility for both housing and social services) the duty to assess will in general be triggered when a vulnerable77 person presents him/herself as homeless (see para 15.18 below).
75 See eg Department of Health (2006) Common Assessment Framework, Care Services Improvement Partnership. 76 SCIE (2010) Common Assessment Framework for Adults at www.scie.org.uk/ publications/nqswtool/statements/assessment/legislation.asp 77 Under Housing Act 1996 s189.
64
3.65
In R (Patrick) v Newham LBC78 the applicant, who had physical and mental health difculties was living rough after the authority had determined that she was intentionally homeless. Lawyers acting on her behalf wrote to the authority, enclosing a doctors letter conrming her signicant psychiatric problems and requested urgent accommodation. In the subsequent judicial review proceedings it was argued (among other things) that this should have triggered an assessment under NHSCCA 1990 s47. Henriques J held:79
I am wholly unable to accept any suggestion that the respondent has discharged its duty under section 47. The authority has not carried out any assessment of the applicants needs for community care services. There is no record of any consideration of the applicants individual circumstances at all . . . An assessment of needs is a formal task to be carried out in accordance with Central Government Guidance and involves collation of medical evidence, psychiatric evidence, etc, with a view thereafter to matching accommodation to needs. I am satised that the Council have not complied with their duty under section 47. That duty plainly accrued [on the date when] the applicants solicitors wrote to the respondent describing the applicants circumstances and requesting urgent accommodation.
3.66
It follows that authorities should ensure that they have the necessary internal organisational networks so that the needs of vulnerable individuals are automatically referred to the relevant community care team irrespective of the point at which rst local authority contact with that individual occurs.80 A failure to make such arrangements may amount to maladministration.
Individuals who may be in need of community care services

3.67
The second requirement for the triggering of the duty to assess is that the authority have knowledge81 that the person may be in need of services. In R v Bristol CC ex p Penfold82 the court held that this was a very low threshold test. ADASS guidance on the implementation of personalisation reminds local authorities, It is lawful to refuse assessment to only a very few people83
78 (2000) 4 CCLR 48, QBD. 79 (2000) 4 CCLR 48, QBD at 5152. 80 See FACS 2002 policy guidance, para 68, which states (among other things) if individuals need other services, ofcers of the council should help them to nd the right person to talk to in the relevant agency or organisation, and make contact on their behalf (see Better Care, Higher Standards). 81 Presumably this may include constructive knowledge. 82 (199798) 1 CCLR 315, 23 January 1998, QBD. 83 ADASS (2009) Personalisation and the law: Implementing Putting People First in the current legal framework p17.
65
What of a future need for services?

3.68
3.69
3.70
NHSCCA 1990 s47(1) speaks of a possible rather than a present need: it must appear that the individual may be in need. Since everyone may at some future time be in need of community care services, the courts and the guidance have adopted a pragmatic approach to the interpretation of the provision. If a person seeks an assessment on the basis of a future need, the key questions appear to be (1) how likely and (2) how imminent? In relation to patients expected to be discharged from hospital, the guidance is phrased in mandatory terms84 even though they will not be in need of community care services until their actual discharge. For such patients, however, the predictability and imminence of need is a given. The hospital discharge assessment duty is now reinforced by legislation Community Care (Delayed Discharges etc) Act 2003 s2 (see para 5.5 below). In R (B) v Camden LBC 85 the court was required to consider the interpretation of the provision in the context of a patient detained under the Mental Health Act 1983, who was seeking discharge. Stanley Burnton J held that the phrase a person . . . may be in need of such services referred:
. . . to a person who may be in need at the time, or who may be about to be in need. A detained patient who is the subject of a deferred conditional discharge decision of a tribunal, which envisages his conditional discharge once section 117 after-care services are in place, is a person who may be in need of such services, since if such services are available to him he will be discharged and immediately need them. Whether a patient who may reasonably be considered to be liable to have such an order made in an impending tribunal hearing is an issue I do not have to decide in the instant case, but I incline to the view that he is. However, the duty under section 47 does not arise until it appears to the local authority that a person may be in need, and it cannot appear to it that he may be in need unless it knows of his possible need. It is presumably for this reason that the Community Care (Delayed Discharges etc) Act 2003 was enacted. . . .
3.71
3.72
R v Mid-Glamorgan CC ex p Miles86 concerned a similar problem: a prisoner whose only hope of parole was dependent upon a prior conrmation that the local authority would fund a drug rehabilitation hostel for him. The authority was not prepared to assess him until parole was granted. The case was settled on terms that the local authority undertook the assessment. Concern has been expressed by disabled people about the current lack of provision enabling portability of services, and the extent to which that limits freedom of movement. A proactive approach to assessments would help facilitate this. The Prioritising Needs guidance, reecting this concern, states:
84 The rst key step in the English guidance (see para 5.8) is to start planning for discharge or transfer before or on admission, (including by implication the section 47 community care assessment process). 85 [2005] EWHC 1366 (Admin), (2005) 8 CCLR 422 at [66][67]. 86 Unreported, January 1994 Legal Action 21.
66
Community care and the law / chapter 3 This pragmatic approach [taken in R (B) v Camden LBC above] should also be taken in relation to people with rm plans to move to another local authoritys area, for example, a person with a job offer who intends to take it up, subject to suitable community care services being available. Such people could be described as about to be in need in the local authoritys area, even though they may already be in receipt of services in the area which they are leaving. The persons move must be reasonably certain: local authorities would not be obliged to assess a person who was simply considering a move to the area.87
3.73
While inter-authority consultation is good practice and useful, the Court of Appeal held that there was neither a statutory duty under NHSCCA 1990 s47(3), nor did fairness require consultation when one local authority reached an assessment decision resulting in an individual moving from residential care into supported living in a second local authoritys area (see paras 3.134 and 6.28 below).88
No need to request an assessment

3.74
As has been noted above, NHSCCA 1990 s47(1) marked a major advance on the previous assessment obligation (under DP(SCR)A 1986 s4) by dispensing with the need for a request in order to activate the obligation. In R v Gloucestershire CC ex p RADAR89 it was held that the local authority could not discharge its obligation to potential service users (who had previously received services) simply by writing to them, asking them to reply if they wanted to be considered for assessment. Carnwath J stated:
The obligation to make an assessment for community care services does not depend on a request, but on the appearance of need . . . . Of course, the authority cannot carry out an effective reassessment without some degree of co-operation from the service user or his helpers. However, that is a very different thing from saying that they can simply rest on having sent a letter of the type to which I have referred.
3.75
In reaching this decision the court emphasised the essential frailty of many of the potential service users:
In some areas of law that might be an adequate response, where those affected can be assumed to be capable of looking after their own interests, and where silence in response to an offer can be treated as acceptance or acquiescence. However, that approach cannot be and is not valid in the present context.90
3.76
Clearly it will be a question of fact and degree, whether a local authority has, in any particular situation, sufcient knowledge of a potential service user, so as to trigger the duty to assess. In R v Bexley LBC ex p B91 for instance the court held that:
87 Para 50. 88 Buckinghamshire CC v Royal Borough of Kingston upon Thames [2011] EWCA Civ 457, (2011) 14 CCLR 427. 89 (199798) 1 CCLR 476, QBD. 90 (199798) 1 CCLR 476 at 482D, QBD. 91 (2002) 3 CCLR 15 at 22J.
67
Authorities are, however, under an obligation to make provision . . . whenever they are satised that the relevant conditions have been met. A request by or on behalf of a disabled person is not one of those conditions. It seems to me that the Court should look at the reality of the situation. In the present case, although no formal request was made by the applicants mother for an assessment of the applicants needs, that was the effect of what happened in the early months of 1994.
3.77
Not only is the duty to assess independent of any request from the potential service user, it also arises irrespective of: a) b) c) there being any prospect of the potential service user actually qualifying for any services;92 the nancial circumstances of the service user;93 or the service user being ordinarily resident94 in the local authoritys area.95
Entitlement to services is not relevant

3.78
The duty to assess is triggered when the authority is aware of an appearance of need, and not the likelihood of entitlement to services. R v Bristol CC ex p Penfold 96 concerned a 52-year-old person who suffered from anxiety and depression. The authority refused to carry out a community care assessment on the grounds (among others) that there was no prospect of meeting any needs that might have emerged in the course of the assessment (because their eligibility criteria were so tightly drawn, that only people at considerable risk were likely to be offered services). In relation to this argument, Scott Baker J held97
Even if there is no hope from the resource point of view of meeting any needs identied in the assessment, the assessment may serve a useful purpose in identifying for the local authority unmet needs which will help it to plan for the future. Without assessment this could not be done. If the Respondents argument on construction is accepted, the consequence will be that not only can authorities set wholly disparate eligibility criteria for services they intend to provide but they may also utilise such criteria as a basis for whether they will undertake a community care assessment at all. This cannot be right. The mere fact of unavailability of resources to meet a need does not mean that there is no need to be met. Resource implications in my view play no part in the decision whether to carry out an assessment.
92 See R v Bristol CC ex p Penfold (199798) 1 CCLR 315, QBD (discussed below) although in such cases the assessment may be rudimentary. 93 LAC (98)19 [WOC 27/98 in Wales] para 8 and Prioritising Needs guidance, para 77 [UFSAMC 2002, para 2.33 in Wales]. 94 See chapter 6 where ordinary residence is considered further. 95 See R v Berkshire CC ex p P (199798) 1 CCLR 141, QBD (discussed below), although in general this will only be necessary for a local authority to carry out an assessment of someone who is not ordinarily resident in its area, if the persons residence is disputed or he or she has no settled residence. 96 (199798) 1 CCLR 315, QBD. 97 (199798) 1 CCLR 315 at 322, QBD.
68
The duty to assess arises where entitlement exists to NHS continuing care
3.79
As noted at para 14.142 below, the fact that it is the policy of the Department of Health and the Welsh Assembly that individuals eligible for NHS continuing healthcare should have all their care needs met by the NHS, does not in itself displace the statutory duties owed to them under the community care legislation most importantly under NHSA 2006 s254 and Sch 20 (NHS (Wales) Act (NHS(W)A) 2006 s192 and Sch 15). Such people may still remain in need of such services and as a consequence the duty to assess under the 1990 Act is triggered. The Department of Health has expressed its view on this question (following the abuse inquiry concerning people with learning disabilities accommodated by the Cornwall Partnership NHS Trust98) in the following terms:99
One of the key contributing factors identied in Cornwall was a clear absence of person-centred planning together with a failure to provide comprehensive, local authority-led assessments for people living in NHS accommodation. Assessments and person-centred planning a fundamental tenet of Valuing People are essential in ensuring that services meet an individuals needs and are in their best interests. It is a matter of signicant concern that this was allowed to happen and I am writing to remind you of your duty to ensure that such assessments are provided under section 47(1) of the NHS and Community Care Act (1990).
The duty to assess arises even when services are discretionary

3.80
The duty to assess is not dependent upon a collateral statutory duty to provide or upon the person being ordinarily resident in the local authoritys area. In R v Berkshire CC ex p P100 the respondent local authority refused to assess the applicant, because it claimed that he was not ordinarily resident within its area. Laws J held:101
I reject the respondents submission that s47(1) imports a condition requiring the physical availability of services to a person before the duty of assessment arises in relation to that person. The word may in the subordinate clause in question means, in the context of the subsection as a whole, that the duty to assess arises where the local authority possesses the
See in particular the joint investigation by the CSCI and the Commission for Healthcare Audit and Inspection into allegations of abuse suffered by people with learning disabilities in accommodation provided by the Cornwall Partnership NHS Trust, July 2006. 99 Letter from the Director General for Social Care dated 2 November 2006 sent to all social services authorities. 100 (199798) 1 CCLR 141, 9 July 1996, QBD. 101 (199798) 1 CCLR 141 at 147F, 9 July 1996, QBD.
98
Community care assessments legal power102 to provide or arrange for the provision of community care services to the individual in question.
3.81
69
Accordingly the duty to assess is not conditional upon whether the service user is resident in the authoritys area or indeed whether the local authority is prepared to exercise its discretion to make any such services available. The rationale behind this decision (in relation to the ordinary residence question) must be that without such a duty, persons whose residence was disputed by two or more authorities would effectively be in limbo until their residence was resolved. However, in R (J) v Southend BC103 Newman J held that where the ordinarily resident authority accepts responsibility to assess, the authority in whose area the service user is actually physically present, cannot (absent unusual factors) be compelled to undertake an assessment.
Returning UK nationals
3.82
The principle established in R v Berkshire CC ex p P is of relevance in relation to returning UK nationals who may have been living for an extended period abroad. If on arrival they present with community care needs, it may be that they have no settled residence (see para 36 below) or at least their ordinary residence is disputed. The receiving authority will therefore have a duty to assess their community care needs even if an ordinary residence determination is being sought (see para 6.63 below): UK nationals (unlike other EEA nationals or non-European nationals) are not disentitled to community care services (see para 21.71 below). Any such assessment may have to rely (initially at least) to a greater or lesser extent upon information provided by the overseas authorities.
Financial circumstances are not relevant

3.83
The nancial circumstances of a person are irrelevant for the purposes of assessment. This point is made explicit by policy guidance in relation to residential care LAC (98)19104 which states:
8. Local authorities are under a legal duty under the NHS and Community Care Act 1990 to assess the care needs of anyone who, in the authoritys view, may be in need of community care services. It is the Departments view that the law does not allow authorities to refuse to undertake an assessment of care needs for anyone on the grounds of the persons nancial resources, eg because they have capital in excess of the capital limit for residential accommodation. Even if someone may be able to pay the full cost of an services, or make their own arrangements independently
102 Social services authorities have the power under National Assistance Act (NAA) 1948 s29 to provide services for people who are not ordinarily resident in their area, see para 9.56. 103 [2005] EWHC 3547 (Admin). 104 WOC 27/98, para 8 in Wales.
70
Community care and the law / chapter 3 . . . they should be advised about what type of care they require, and informed about what services are available.105
3.84
This view is reinforced by the Prioritising Needs guidance, which states at para 77:106
From the beginning of the process, councils should make individuals aware that their individual nancial circumstances will determine whether or not they have to pay towards the cost of the support provided to them. However, an individuals nancial circumstances should have no bearing on the decision to carry out a community care assessment providing the qualifying requirements of section 47(1) of the NHS and Community Care Act 1990 are met. Neither should the individuals nances affect the level or detail of the assessment process.
The nature of an assessment

3.85
3.86
Despite the central importance of the assessment in community care law, there is no effective legislative description of the process. DP(SCR)A s3 described with some precision the procedure to be followed in an assessment, but this section has not been brought into force because of its resource and administrative implications. However, given that such procedures have received royal assent, it may be difcult for the executive to issue directions that are radically different to the scheme prescribed by the 1986 Act.107 The only provisions in NHSCCA 1990 in relation to how local authorities should carry out assessments are:
s47(3) which species when the NHS and the housing authority should be invited to be involved (see para 3.125 below); and s47(4) which requires assessments to be carried out in accordance with any directions issued by the secretary of state. As noted above (para 3.23), directions have been issued in England.108 But other than
105 The circular is expressed as being issued under LASSA 1970 s7(1); see also para 7.22 below where it is further considered. See also the statement of Liam Byrne, Parliamentary Under Secretary of State for Care Services, in response to a written question from Paul Burstow MP, HC Debates col 1799W, 12 December 2005, that an individuals nancial circumstances should have no bearing on whether a LA carries out a community care assessment or not. Once an individuals care needs have been assessed and a decision made about the care to be provided, an assessment of his/her ability to pay charges should be carried out promptly. Written information about any charges payable, and how they have been calculated, should be communicated to the individual. 106 UFSAMC 2002, para 2.33 in Wales makes the same point, but more briey. 107 See eg R v Secretary of State for the Home Department ex p Fire Brigades Union [1995] 2 All ER 244, where the secretary of state could not validly . . . resolve to give up his statutory duty to consider from time to time whether or not to bring the statutory scheme into force (per Lord Browne-Wilkinson at 256B) and so could not introduce a conicting non-statutory criminal injuries compensation scheme. 108 26 August 2004; accessible at www.dh.gov.uk/en/publicationsandstatistics/ publications/publicationslegislation
71
requiring that the person to be assessed and where appropriate carers are consulted, and that reasonable steps are taken to reach agreement about the care plan, the directions are remarkably short on the procedure to be followed in an assessment.
72
The assessment and presenting needs

3.87
The rst stage of the NHSCCA 1990 s47(1) assessment process obliges authorities to identify those needs which could potentially be satised by the provision of a community care service. In the terminology of the Department of Health, these are now known as presenting needs.109 The assessor is required to collect sufcient data concerning these presenting needs (under section 47(1)(a)) in order to determine the section 47(1)(b) question, namely: which of the applicants presenting needs call for the provision of community care services?. As Hale LJ observed in R v Tower Hamlets LBC ex p Wahid,110 need is a relative concept, which trained and experienced social workers are much better equipped to assess than are lawyers and courts, provided that they act rationally.
Relevant information
3.88
3.89
As a matter of public law the assessment process must ensure that so far as is practicable all relevant information is collected and taken into account when the service provision decision is made. It follows that a failure to collect such information and to take it into account in the decision-making process could invalidate the assessment. What is relevant and what is practicable will depend upon the circumstances of a persons situation, and so the scope and depth of the assessment process will vary from case to case. (see para 3.97) What authorities cannot do, however, is to restrict the scope of assessments for policy or nancial reasons. By way of example, R v Haringey LBC ex p Norton111 concerned the adequacy of the local authoritys assessment, undertaken in response to the applicants complaint about a decision to reduce his community care services. In the assessment the council only considered its obligation to provide personal care needs rather than other needs such as social, recreational and leisure needs. The court held this to be unlawful; the assessment had to investigate all potential needs. In R (B) v Cornwall CC (2009)112 Hickinbottom J observed that the Community Care Assessment Directions 2004:
. . . set a pattern for the general scheme of community care. Decisionmaking rests in the responsible authority, but their powers are only to be exercised after appropriate engagement with the service user and any relevant carers (who may include, for example, the service users parents or other family). Prior to coming to a concluded view on needs, they should consult: prior to coming to a decision on steps to be taken to meet that need, they should attempt to reach agreement: and in relation to the oncost to the service user, they should provide appropriate information.
109 Prioritising Needs guidance, para 47: presenting needs mean the issues and problems that are identied when individuals contact, or are referred to, councils seeking social care support: UFSAMC 2002 (Wales) does not use this term or any other specic term of art. 110 [2001] EWHC 641 (Admin), (2001) 4 CCLR 455. 111 (199798) 1 CCLR 168, QBD. 112 [2009] EWHC 491 (Admin), (2009) 12 CCLR 381 at [9].
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Assessments prepared by other social services authorities

3.90
Relevant information will also include any assessments and associated evidence prepared by other authorities, the opinions of experts and other professionals and other people with knowledge of the person being assessed. In this respect the Prioritising Needs guidance states:113
When a service user permanently moves from one council area to another (or has a clear intention to move to another council See Determining eligibility in respect of individuals section of this guidance), the council whose area they move into should take account of the support that was previously received and the effect of any substantial changes on the service user when carrying out the assessment and making decisions about what level of support will be provided. If the new council decides to provide a signicantly different support package, they should produce clear and written explanations for the service user.
Presenting needs
3.91
3.92
The Prioritising Needs guidance distinguishes between presenting needs and eligible (or assessed) needs. A presenting need is a need that is identied by the person being assessed or some other on his or her behalf. It is not, however, a need that the local authority is under a duty to meet: such a duty only arises when the authority decides that the need is sufciently important that it is eligible for services ie that the result of the assessment is that the need should be met. Early (1991) practice guidance on the assessment process114 described the concept of presenting needs (without using the term) as follows:
11. Need is a complex concept which has been analysed in a variety of different ways. In this guidance, the term is used as a shorthand for the requirements of individuals to enable them to achieve, maintain or restore an acceptable level of social independence or quality of life, as dened by the particular care agency or authority. 16 . . . Need is a multi-faceted concept which, for the purposes of this guidance, is sub-divided into six broad categories, each of which should be covered in a comprehensive assessment of need: Personal/social care healthcare accommodation nance education/employment/leisure transport/access.
3.93
Some presenting needs (such as those listed above) tend to suggest specic services, for instance a need for accommodation, whereas some will condition the way a service is delivered, for instance a person might have a
113 Para 87; UFSAMC 2002 para 5.43 in Wales. 114 Department of Health Social Services Inspectorate (1991) Care Management and Assessment: a practitioners guide.
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need for a rigid routine.115 In R v Avon CC ex p M116 the applicant formed an entrenched view, specied in a psychologists report as attributable to his Downs syndrome, that he wanted to go to a particular residential home even though an alternative, cheaper home objectively catered for all his other needs. The authority refused to fund the more expensive home on the ground that it would set a precedent by accepting psychological need as being part of an individuals needs which could force it to pay more than it would usually expect to pay in such cases. Rejecting this argument, Henry J held:117
The [local authoritys report] . . . proceeds on the basis that the psychological need can simply be excluded: . . . Ms needs are thus arbitrarily restricted to the remainder of his needs, which are then described as usual. Meeting his psychological needs is then treated as mere preference, a preference involving payments greater than usual. The law is clear. The council have to provide for the applicants needs. Those needs may properly include psychological needs.
3.94
The SAP policy guidance (2002)118 gives a table outlining the range of the more common and specic presenting needs for older people (the table is reproduced as a diagram 4 below). For younger disabled people, additional factors might need greater emphasis, for instance the need to discharge ones obligations as a parent (see para 3.44 above). Diagram 4: Single assessment process (SAP) Annex F The domains and sub-domains of the single assessment process Users perspective

115 116 117 118
Needs and issues in the users own words Users expectations, strengths, abilities and motivation
Clinical background History of medical conditions and diagnoses History of falls Medication use and ability to self-medicate
Disease prevention History of blood pressure monitoring Nutrition, diet and uids Vaccination history Drinking and smoking history Exercise pattern History of cervical and breast screening
See eg complaint no 03/C/16371 against Stockton-on-Tees BC, 18 January 2005. (1999) 2 CCLR 185, [1994] 2 FLR 1006, QBD. (1999) 2 CCLR 185, QBD at 195196. At Annex F. A similar list for Wales appears at UFSAMC 2002 para 4.24.
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Personal care and physical well-being Personal hygiene, including washing, bathing, toileting and grooming Dressing Pain119 Oral health Foot-care Tissue viability Mobility Continence and other aspects of elimination Sleeping patterns Senses
Sight Hearing Communication
Mental health Cognition and dementia, including orientation and memory Mental health including depression, reactions to loss, and emotional difculties
Relationships Social contacts, relationships, and involvement in leisure, hobbies, work, and learning Carer support and strength of caring arrangements, including the carers perspective
Safety Abuse and neglect Other aspects of personal safety Public safety
Immediate environment and resources Care of the home and managing daily tasks such as food preparation, cleaning and shopping Housing location, access, amenities and heating Level and management of nances Access to local facilities and services
119 see also para 3.143 below.
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The assessment process

The scope of the assessment
3.95
The scope and depth of an assessment will be determined in large measure by the complexity of the persons needs. The assessment may consist of little more than a single conversation with a social worker or may involve complex analysis of data, protracted interviews and multidisciplinary meetings spanning many months. The 1991 practice guidance advice (at para 3.3) expressed this point thus:
. . . the scope of an assessment should be related to its purpose. Simple needs will require less investigation than more complex ones. In the interests of both efciency and consumer satisfaction, the assessment process should be as simple, speedy and informal as possible.120
3.96
The Prioritising Needs guidance reiterated this advice, stating (at para 69) that:
Councils should not operate eligibility criteria to determine the complexity of the assessment offered; rather the depth and breadth of the assessment should be proportionate to individuals presenting needs and circumstances, including how much support carers are able to provide, where appropriate121.
3.97
3.98
Advice in the now superseded FACS policy guidance122 suggested a grading of types of assessment initial, taking stock of wider needs, specialist and complex assessments. This is the approach of the Welsh guidance123 reecting SAP guidance which categorises assessments into four types: contact; overview; specialist, and comprehensive. This classication, although it relates specically to older people, could be applied equally to other service groups124. In practice, this approach has been overtaken in England by the dominance in the assessment process of self-assessment questionnaires (see para 3.100 below) The courts have been unenthusiastic about guidance that dictates an overly prescriptive approach to the assessment process. The 1991 practice guidance, for instance, put forward six models of assessment, from simple to comprehensive and then stated that all disabled people had the right to a comprehensive assessment (regardless of how complex their needs might be). This advice was considered by Carnwath J in R v Gloucestershire CC ex p RADAR,125 where (referring to the 1991 practice guidance) he held:
I have some sympathy with those trying to write these sort of guides since the complexity of the legislative chain, combined with the length of the
120 FACS 2002 policy guidance, para 35 advises that they be as simple and timely as possible. 121 UFSAMC 2002 also refers to the need for assessments to be proportionate, para 2.9 122 Para 34. 123 UFSAMC para 2.13 124 Department of Health (2002) The Single Assessment Process Guidance for Local Implementation policy guidance, para 12(IX). 125 (199798) 1 CCLR 476 at 484, QBD.
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titles of most of the Acts, makes short and accurate exposition particularly difcult. However, if what is intended is to dene the legal obligation in respect of the disabled, then it can only be intended as a reference to the decision referred to in s4 Disabled Persons (Services, Consultation and Representation) Act 1986, that is, as to the range of services required under s2 of the 1970 Act. I take that to be the intended meaning of the word comprehensive. If it is intended to mean anything else, it is misleading.
3.99
In R (McDonald) v Royal Borough of Kensington and Chelsea, the majority of the Supreme Court rejected the appellants claim that two care plan reviews carried out by the respondent did not amount to a lawful reassessment of her needs. Although Lord Kerr (at para 39) felt there had been no authentic re-evaluation of her needs, Lord Brown, cited with approval Rix LJ in the Court of Appeal decision:126
In my judgment, the 2009 and 2010 reviews are to be read as including a reassessment of Ms McDonalds needs. It is irrelevant that there has been no further separate Needs Assessment document. Such a document is not, it seems, necessary in the rst place, because a care plan could incorporate a needs assessment; but in any event FACS itself contemplates that a care plan review will incorporate a review of assessed needs.
Self-assessment
3.100
The use of multiple choice self-assessment questionnaires has begun to proliferate in some parts of England. The concept of self-assessment reects the emphasis of the personalisation agenda on placing the individual at the heart of the process, respecting their expert knowledge of their own needs. However, the multiple choice nature of the questionnaires currently in use is a response to the perceived need to produce a set of standardised answers to generate points for the purposes of resource allocation. This aspect, including resource allocation schemes, is analysed in more detail in chapter 4. Given the currently non-delegable nature of the assessment duty (see paras 3.493.53 above) pure self-assessment is not lawful. As Hickinbottom J held in R (B) v Cornwall County Council127 an authority:
. . . cannot avoid its obligation to assess needs etc by failing to make an appropriate assessment themselves, in favour of simply requiring the service user himself to provide evidence of his needs.
3.101
The Prioritising Needs guidance promotes person-centred assessment while characterising self-assessment as a stage in the overall assessment process (at paras 83 and 84):
The assessment process should be person-centred throughout and also consider the wider family context. Councils should recognise that individuals are the experts on their own situation and encourage a partnership approach, based on a persons aspirations and the outcomes they wish to achieve, rather than what they are unable to do. Professionals should fully involve the person seeking support by listening to their views
126 [2011] UKSC 33, (2011) 14 CCLR 341 at [12]. 127 [2009] EWHC 491 (Admin), (2009) 12 CCLR 381 at para 68.
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Community care and the law / chapter 3 about how they want to live their lives and the type of care and support that best suits them and by helping them to make informed choices. This includes identifying the support the person needs to make a valued contribution to their community. Councils may wish to consider encouraging those who can and wish to do so to undertake an assessment of their own needs prior to the council doing so. Although self-assessment does not negate a councils duty to carry out its own assessment, which may differ from the persons own views of their needs, it can serve as a very useful tool for putting the person seeking support at the heart of the process.
The term supported assessments is often used in practice, and more accurately reects the legal position.
Screening assessments
3.102
The CSCI reported in 2008 that:

Almost one in ve carers and one in eight of those who said they could benet from social care reported they had failed to have an assessment of their needs. One third of these respondents understood this was because they did not meet nancial eligibility criteria for help (suggesting they were asked about their nancial resources prior to any needs assessment, which contravenes current policy).128
3.103
3.104
3.105
The Prioritising Needs guidance, para 76,129 cautions against individuals being screened out of the assessment process before sufcient information is known about them. This is most likely to occur in two instances; either because a pre-emptive decision is made about eligibility, a process found to be unlawful in R v Bristol City Council ex p Penfold130 (see para 3.78 above), or because an individual is deemed to be a self-funder before any form of community care assessment is carried out. The Prioritising Needs guidance conrms that, An assessment of a persons ability to pay for services should only take place after they have been assessed as having an eligible need for services.131 Certain basic matters must be considered in even the most rudimentary interview for it to amount to an assessment. In R v Bristol CC ex p Penfold the respondent sought to argue that a mere consideration by the council of an applicants request for an assessment, was itself an assessment. Rejecting this, Scott Baker J held that an assessment cannot be said to have been carried out unless the authority concerned has fully explored the need in relation to the services it has the power to supply. In some cases the exercise will be very simple; in others more complex.132 Thus there is a distinction to be made between screening people out of the process altogether, as happened to Mrs Penfold, and carrying out an assessment by telephone which includes a determination as to whether or
128 129 130 131 132 Cutting the Cake Fairly, CSCI report 2008. UFSAMC 2002, para 2.23 in Wales. See also para 3.20 of the 1990 policy guidance. (199798) 1 CCLR 315, QBD. Prioritising Needs Guidance 2010, para 71. (199798) 1 CCLR 315 at 321C, QBD.
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3.106
not the individuals needs call for the provision of any services. There is nothing intrinsically unlawful about a telephone assessment, provided it complies with certain minimum criteria as detailed below. Indeed such procedures enable authorities to conserve their limited human resources and target scarce ofcer time on more detailed assessments of those in most need. However, the quality (including training and supervision) of telephone assessors, needs to be such as to ensure that they are able to identify the need for a face to face assessment, for instance if there is any indication of cognitive impairment or mental illness rendering a telephone assessment unreliable. By way of further example, a disabled person phoning to enquire about a blue badge for parking may be unaware of the possibilities of additional care support, but is by denition someone demonstrating an appearance of need,133 requiring further investigation in order to satisfy the NHSCCA 1990 s47(1) duty. The advice of ADASS is as follows:
Staff dealing with rst contact need enough social work skill and experience to recognise indicators of mental impairment which may affect insight and understanding of the options, and the processes involved in assessment, so that those applicants may be assured of their right to assessment.134
Steps in data gathering

3.107
The data gathering element of an assessment must, at the very minimum, be structured in such a way that it seeks to obtain/provide the following information: 1) The applicants name and contact details. 2) The applicants choice of the setting for the assessment. If the applicant is content, the assessment may take place over the telephone but it is essential that the person being assessed has a real choice over the setting of the assessment and (if it be the case) freely chooses the telephone option. 3) Whether there is a need for an interpreter or other facilitator (such as an advocate) or indeed if there is a duty on the authority to involve an Independent Mental Capacity Advocate (see para 17.67. below). 4) The applicants care needs this requires (in the absence of good reasons): a) the users involvement and (with his or her consent) the involvement of any carer135; b) the applicants opinion as to what his or her needs are; c) that the full spectrum of potential needs be considered (see R v Haringey LBC ex p Norton at para 3.88 above);
133 R v Gloucestershire CC ex p RADAR (199798) 1 CCLR 476, QBD. 134 ADASS (2009) Personalisation and the law: implementing putting people rst in the current legal framework p5. 135 Even where consent is withheld, the duty to take into account the ability of the carer to care still applies pursuant to DP(SCR)A 1986 s8 (see para 16.23).
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d) the particular risk factors that the applicant faces as well as his or her aptitudes, abilities and access to existing social support networks; e) what outcomes/services the applicant wants, and his or her preferences as to how those outcomes are to be achieved. 5) Whether there is any carer who may potentially be entitled to an assessment under the Carers (Recognition and Services) Act 1995 or the Carers and Disabled Children Act 2000.136 6) Any associated health or housing difculties the applicant may have. If such exist then there must be a referral to the health or housing authority and it would seem therefore that the assessment cannot be nally concluded until a response has been received to that referral and the contents of that response fully considered. 7) The applicant should also be advised of his or her right to: a) have a written copy of the assessment; and b) make representations/use the complaints procedures if he or she believes that services have been unreasonably refused.
The setting of an assessment

3.108
The 1991 practice guidance (at paras 3.123.15) emphasises the importance of the assessment being conducted in an appropriate location, as this may have a material effect on its outcome. It points out that ofce interviews, whilst administratively convenient and less costly than domiciliary assessments, may give false results if the interviewee is not at ease, and that the applicant is more likely to relax in the home setting. The following important points are also made:
3.13 Where the assessment is concerned with the maintenance of a person at home, the assessment should take place in that setting. If users are considering admission to residential or nursing home care, involving irreversible loss of their home, they should always be given the opportunity of experiencing that setting before making their nal decision. 3.14 There may be advantages to some part of the assessment being undertaken in settings external to the home, for example, day or residential care settings, so that staff have longer contact with the individual. In such circumstances, assessors will be working in close collaboration with service providers. 3.15 In considering such options, care should be taken to avoid exposing individuals to unnecessary disruption. In addition, it is necessary to avoid assuming that behaviour will be replicated in other settings. Such considerations may, occasionally, affect assessment arrangements for hospital discharges.
User involvement
3.109
The Community Care (Assessment) Directions (see para 3.23 above) requirement to consult the user, cited, for example, in R (B) v Cornwall
136 Community Care (Assessment) Directions 2004, direction 2.
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CC,137 is amplied in the Prioritising Needs guidance which advises that (at para 83):
The assessment process should be person-centred throughout and also consider the wider family context. Councils should recognise that individuals are the experts on their own situation and encourage a partnership approach, based on a persons aspirations and the outcomes they wish to achieve, rather than what they are unable to do. Professionals should fully involve the person seeking support by listening to their views about how they want to live their lives and the type of care and support that best suits them and by helping them to make informed choices. This includes identifying the support the person needs to make a valued contribution to their community.
3.110
The 1991 policy guidance also stressed the importance of involving users in the assessment process so that the resulting services fully take into account their preferences (and so far as possible those of their carers).138 It highlighted the need for the assessor to establish a relationship of trust and to clarify what the assessment will entail. The Prioritising Needs guidance at paragraph 79 states that assessments should be carried out in such a way, and be sufciently transparent, for individuals to:

3.111
Gain a better understanding of the purpose of assessment and its implications for their situation; Actively participate in the process; Identify and articulate the outcomes they wish to achieve; Identify the options that are available to meet those outcomes and to support their independence and well-being in whatever capacity; Understand the basis on which decisions are reached.
In R v North Yorkshire CC ex p Hargreaves139 the social services authority came to a service provision decision without taking into account the preferences of the disabled person largely because (in Dyson Js opinion) her carer was very protective and probably considered by the social services authority as obstructing its ability to communicate with the disabled person. Nevertheless this did not discharge the authoritys obligation to discover what her preferences were, and accordingly the decision was quashed.
Disputed assessments
3.112
If an assessment is disputed the view of the social worker or care manager will prevail, subject to the overall lawfulness of the assessment process and decision-making. This follows since the local authority is charged by NHSCCA 1990 s47(1) with the duty to assess and determine, with regard to the assessment, whether the needs call for the provision of services. Where a dispute arises and agreement cannot be reached, the correct
137 [2009] EWHC 491 (Admin), (2009) 12 CCLR 381 at para 68. 138 At paras 3.16 and 3.25. 139 (199798) 1 CCLR 104, QBD.
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procedure is for the council to record on the completed document the areas of disagreement: it may be maladministration for a council to delay nalising the assessment (and implementing the support plan) pending resolution of the differences.140
Persons unable to participate fully in the assessment process

3.113
3.114
3.115
3.116
Individual involvement in the assessment process becomes a more difcult question where the potential service user is unable to participate fully due to lack of ability to communicate or mental capacity (see also chapter 17 where questions of mental capacity are further considered). The Code of Practice for the Mental Capacity Act 2005 gives detailed guidance on good practice for assessing capacity (see para 17.3 below). Much of the general and specic user group assessment guidance stresses the importance of endeavouring to communicate with service users, no matter how severe their impairments, and of the particular importance of advocacy services in this respect.141 The 1990 policy guidance states that where a user is unable to participate actively [in the assessment] it is even more important that he or she should be helped to understand what is involved and the intended outcome.142 The 1991 practice guidance elaborates on this advice, stating that where it is clear that a user or carer would benet from independent advocacy, he or she should be given information about any schemes funded by the authority or run locally. It goes on to state that it is consistent with the aims of basing service provision on the needs and wishes of users that those who are unable to express their views for example, those with severe learning disabilities or dementia or those who have been previously disadvantaged for example, those from minority ethnic groups should, as a matter of priority, be supported in securing independent representation.143 In R (A and B) v East Sussex CC (No 2),144 a case concerning the appropriate way to lift and move two young women (X and Y) with profound physical and learning difculties, Munby J stressed the importance of ascertaining their views on the process:
132. I have said that the assessment must take account of the disabled persons wishes, feelings and preferences. How are these to be ascertained? 133. In a case where the disabled person is, by reason of their disability, prevented, whether completely or in part, from communicating their wishes and feelings it will be necessary for the assessors to facilitate the ascertainment of the persons wishes and feelings, so far as they may be
140 Complaint no 07/A/11108 against Surrey County Council, 11 November 2008, para 42. 141 See para 18.29 for further considerations of the role of advocacy services. 142 At para 3.16 of the policy guidance. 143 At paras 3.253.27, of the policy guidance. 144 [2003] EWHC 167 (Admin), (2003) 6 CCLR 194.
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deduced, by whatever means, including seeking and receiving advice advice, not instructions from appropriate interested persons such as X and Y involved in the care of the disabled person. 134. Good practice, Miss Foster suggests, would indicate, and I am inclined to agree that: A rough dictionary should be drawn up, stating what the closest carers (in a case such as this, parents and family, here X and Y) understand by the various non verbal communications, based on their intimate long term experience of the person. Thus with familiarisation and interpretation the carers can accustom themselves to the variety of feelings and modes of expression and learn to recognise what is being communicated. ii) Where the relatives are present with the carers and an occasion of interpretation arises, great weight must be accorded to the relatives translation. iii) As I commented in Re S (2003)145 the devoted parent who . . . has spent years caring for a disabled child is likely to be much better able than any social worker, however skilled, or any judge, however compassionate, to read his child, to understand his personality and to interpret the wishes and feelings which he lacks the ability to express. iv) That said, in the nal analysis the task of deciding whether, in truth, there is a refusal or fear or other negative reaction to being lifted must . . . fall on the carer, for the duty to act within the framework given by the employer falls upon the employee. Were the patient not incapacitated, there could be no suggestion that the relatives views are other than a factor to be considered. Because of the lack of capacity and the extraordinary circumstances in a case such as this, the views of the relatives are of very great importance, but they are not determinative.
3.117
i)
The practice of requiring assessments to be signed by service users, whilst in general representing good practice, should not be pursued indiscriminately and could not be obligatory both because an assessment is not a contractual document requiring formal acceptance and because a signicant number of service users may lack the relevant mental capacity. In R (F, J, S, R and others) v Wirral BC,146 McCombe J criticised the imposition of such a requirement, particularly when the signatories are vulnerable members of society.
Persons unwilling to be involved in the assessment process

3.118
3.119
The issue of user involvement becomes controversial where the potential service user chooses not to participate in (or actively objects to) the assessment. A literal interpretation of the section 47(1) duty suggests that the assessment duty is activated even when the potential service user objects
145 [2002] EWHC 2278, [2003] 1 FLR 292 at [49] see para 24.95 below. 146 [2009] EWHC 1626 (Admin), (2009) 12 CCLR 452 at para 72.
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3.120
to being assessed: strictly speaking, his or her consent is not required.147 While he or she can refuse to take part in an assessment, he or she cannot stop the assessment taking place. Of course, in practice, an objection would generally be an end of the matter, provided the person has full mental capacity to make an informed decision on the question148 since, as Carnwath J observed, without some degree of co-operation the effectiveness of any assessment will be signicantly impaired.149 The 1991 practice guidance accepts that an individuals involvement in the assessment process may be involuntary (at para 3.17) and that any individual can withdraw at any stage from active involvement. The effect of such wilful lack of co-operation may be that the social services authority nds it impossible to ascertain the preferences of the user and/or carer.150 In this respect the local government ombudsman has observed that before a council can conclude that it is unable to carry out an assessment due to user non-cooperation, it must try and explain to him/her the potential advantages of the process (generally in writing).151 The 1991 practice guidance makes a number of further and important observations:
3.17 Individuals who enter voluntarily into the assessment process should also be made aware of their entitlement to withdraw at any stage. Where the assessment is on an involuntary basis, for example, as a prelude to possible compulsory admission to psychiatric hospital, it is even more important that the individuals are helped to understand, as far as they are able, the nature of the process in which they are engaged. It is less clear cut where practitioners are dealing with someone, with failing capacities, for example, relapse of a psychotic illness, where intervention has been on a voluntary basis but, at a certain threshold of risk or vulnerability, it is likely to tip over into compulsory admission. That threshold should be clearly dened in policy terms and agreed with other relevant agencies, for example, police and health authorities. All practitioners should be clear on the distinction between using assessment as an instrument of social support as opposed to social control. The former offers choices to the user while the latter imposes solutions. The one should not be allowed to shade into the other without all parties appreciating the full implications of that change.
3.121
The local government ombudsman has criticised a local authority for accepting a service users refusal to be assessed even though it was clear he was in considerable need and placing an unsustainable burden on his main carer. Although she accepted that a council cannot force services upon an unwilling person, in her opinion, such a refusal does not absolve
147 Para 11.2 of the practice guidance to the Carers (Recognition and Services) Act 1995 suggests that users can refuse an assessment; while this may be a statement of practice, as a matter of law it appears incorrect. All an individual can do, is not cooperate and if needs be, refuse any services which are offered. 148 Presumably the mental capacity required would need to encompass an understanding of the potential consequences of that refusal which may for instance be an exposure to signicant direct and indirect risk of harm. 149 R v Gloucestershire CC ex p RADAR (199798) 1 CCLR 476 at 282F, QBD. 150 Per Dyson J in R v North Yorkshire CC ex p Hargreaves (199798) 1 CCLR 104 at 111J, QBD. 151 Report no 02/B/03191 against Buckinghamshire CC, 5 November 2003.
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3.122
it of all responsibility. The report criticised the council for not questioning whether the disabled person was in fact making an informed decision in his refusal or considering the implications for his carer. It stated that the council needed to develop a strategy to work through such a problem and referred to the fact that an intervention by the community nurse, the psychologist, and a worker from the voluntary caring organisation had proved successful in overcoming many of the problems that had led to the initial rejection of the care services.152 The obligation on councils not to take a refusal to be assessed as an end of the matter has been emphasised in a number of different cases and contexts.153 R (J) v Caerphilly CBC154 contains a clear expression of the public law obligation underlying the courts approach to this question ie the requirement for the assessor to be persistent even though it concerns a materially different statutory regime (the CA 1989). Munby J (at para 56) stated:
The fact that a child is uncooperative and unwilling to engage, or even refuses to engage, is no reason for the local authority not to carry out its obligations under the Act and the Regulations. After all, a disturbed childs unwillingness to engage with those who are trying to help is often merely a part of the overall problems which justied the local authoritys statutory intervention in the rst place. The local authority must do its best.
3.123
3.124
The public law duty to persist in the endeavour of delivering community care support services for vulnerable people even when confronted by uncooperative behaviour, is little different to that described in the above cited Caerphilly case. People eligible for community care services will frequently have mental health, cognitive impairment or leaning difculties and their refusals of support may be due to misconceptions, miscomprehensions, temporary lapses and/or be contrary to their best interests. In such cases the public law duty demands perseverance. The specic issue of service refusals is considered further at para 4.54 below. The Community Care (Delayed Discharges etc) Act 2003 obliges local authorities to complete certain assessments within set timescales (see para 4.27 below). Department of Health guidance addresses the question of where liability rests if a patient refuses to co-operate with an assessment:155
If the patient is clear that they do not want the involvement of social services and that they will not accept the services put in place for them, at this stage they become responsible for themselves. Up to that point social services must use their best endeavours to perform an assessment and prepare a care plan, however limited that might be . . .
152 Complaint no 02/C/08690 against Shefeld City Council, 9 August 2004. 153 See eg R v Kensington and Chelsea RLBC ex p Kujtim [1999] 4 All ER 161, (1999) 2 CCLR 340 at 354I; R (Patrick) v Newham LBC (2000) 4 CCLR 48, considered further at paras 4.45 and 7.30 below and R (WG) v Local Authority A [2010] EWHC 2608 (Admin). 154 [2005] EWHC 586 (Admin), (2005) 8 CCLR 255. 155 Community Care (Delayed Discharges etc) Act: Frequently asked questions on reimbursement, 2004, Q & A 32, at www.dh.gov.uk/assetRoot/04/07/19/26/ 04071926.pdf.
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The section 47(3) referral duty in relation to health and housing needs
3.125
Where the assessment discloses a possible housing or medical need, NHSCCA 1990 s47(3) obliges the authority to notify the relevant housing or health authority.156 Section 47(3) provides:
If at any time during the assessment of the needs of any person under subsection (1)(a) above, it appears to a local authority (a) that there may be a need for the provision to that person by such Primary Care Trust or Health Authority157 as may be determined in accordance with regulations of any services under the National Health Service Act 1977, or (b) that there may be a need for the provision to him of any services which fall within the functions of a local housing authority (within the meaning of the Housing Act 1985) which is not the local authority carrying out the assessment, the local authority shall notify that Primary Care Trust, Health Authority or local housing authority and invite them to assist, to such extent as is reasonable in the circumstances, in the making of the assessment; and, in making their decision as to the provision of the services needed for the person in question, the local authority shall take into account any services which are likely to be made available for him by that Primary Care Trust, Health Authority or local housing authority.
3.126
A social service failure to make a referral to the appropriate body may undermine the legality of the assessment process. In general, however, the courts have considered such cases from the public law perspective as a failure to take into account a relevant consideration (see para 26.207) rather than a breach of statutory duty. The greater the likelihood that a referral could have resulted in a different decision being reached, the more probable is it that the courts will conclude that such a failure is material. Thus in R v Birmingham CC ex p Killigrew158 the point relied upon was a failure to follow the 1990 policy guidance quoted below. The applicant was profoundly disabled by multiple sclerosis and a reassessment of her needs failed to seek up-to-date medical evidence. Given the severity of
156 The consequent obligations on the health and housing authorities are considered below at paras 13.39 and 15.12 respectively. Although there is no duty on the notied authority to respond following notication, the service user will benet where parallel duties are triggered. 157 Although the section has been amended (as a result of the demise of health authorities in England and Wales) to insert Primary Care Trusts (National Health Service Reform and Health Care Professions Act 2002 Sch 2(2) para 56), no equivalent amendment has occurred in Wales to refer to Local Health Boards. It appears, however, that this is not strictly necessary, as a result of a combination of the Health Authorities (Transfer of Functions, Staff, Property, Rights and Liabilities and Abolition) (Wales) Order 2003 SI No 813 (W98) which transfers all functions of health authorities in Wales to the Welsh Government and the Local Health Boards (Functions) (Wales) Regulations 2003 SI No 150 (W20) which provides (subject to exceptions) that functions that were exercised by health authorities and were transferred to the Assembly by SI No 813 (2003) are to be exercised by local health boards. 158 (2000) 3 CCLR 109.
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her degenerative condition, Hooper J considered this to be a fundamental breach of the assessment obligation and accordingly quashed the resulting care plan.159
The NHS referral obligation

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In relation to the section 47(3) obligation, the 1990 policy guidance advised as follows:
3.47 It is expected that, as a matter of good practice, GPs will wish to make a full contribution to assessment. It is part of the GPs terms of service to give advice to enable patients to avail themselves of services provided by a local authority.160 3.48 Where advice is needed by the local authority in the course of assessment, this should be obtained from the GP orally (eg by telephone) as far as possible. A record should be kept of the advice given. In addition to the information that only the patients own GP can provide, local authorities may, on occasion, also require a clinical examination or an interpretation of the medical report provided by the GP. Local authorities should, therefore, be aware that GPs have a personal duty to and a relationship with their patients, and may not be best placed to act in addition as an assessor on the authoritys behalf. In such circumstances local authorities may wish other practitioners to act in, this capacity.
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3.129
It follows, from section 47(3), that where during the assessment process an NHS need is disclosed, the assessing authority is obliged to notify the PCT or local health board and at the same time to specify what assistance it is that the authority is requested to provide in order to facilitate the assessment. The health body is not, however, under any statutory duty to respond or co-operate.161 A failure to respond or failure to respond within a reasonable time or in a reasonable manner would, however, be vulnerable to challenge as maladministration Where the NHS responds to a section 47(3) referral, the local authority will be required to give this information substantial weight in reaching its service provision decision and in general to evidence the fact.162 Ultimately, however, the decision on need will be for the social services authority to make and not the health body: a local authority is required to exercise independence and a misplaced belief that it is bound by a medical opinion will be vulnerable to a public law challenge.163
159 See also local government ombudsman complaint no 99/A/00988 against Southwark, 12 March 2001. 160 This obligation continues: the current GMS contract (as with the previous) requires GPs to refer (as appropriate) a patient for other services under [what is now the NHSA 2006/NHS(W)A 2006] (National Health Service (General Medical Services Contracts) Regulations 2004 SI No 291 reg 15(5)(b) see para 13.46). NHSA 2006 s254 and Sch 20 and NHS(W)A 2006 s192 and Sch 15 place substantial duties on social services for the provision of community care services see para 9.154 below. 161 Unlike the equivalent duty under CA 1989 s27. Adult care guidance places a positive obligation on the NHS in certain situations, eg SAP policy guidance (2002) and UFSAMC 2002 (Wales). 162 But see R (Ireneschild) v Lambeth LBC [2007] EWCA Civ 2354, (2006) 9 CCLR 686. 163 R (Goldsmith) v Wandsworth LBC [2004] EWCA Civ 1170, (2004) 7 CCLR 472.
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The housing authority referral obligation

3.130
3.131
3.132
3.133
Section 47(3) requires that if, during the assessment process, a housing need is disclosed, the assessing authority is obliged to notify the housing authority and at the same time to specify what assistance that authority is requested to provide in order to facilitate the assessment. It follows that the section 47(3) duty only applies if the housing authority is a different authority ie is not a department within the same council. Nevertheless, there is substantial guidance exhorting housing and social services departments to co-operate164 and an administrative obligation must exist, even within unitary authorities, for such departments to work together. In R (Wahid) v Tower Hamlets LBC,165 for example, Hale LJ observed that it was obviously good practice . . . to involve the housing department where this is part of the same local authority. However, in R v Lewisham LBC ex p Pinzon and Patino166 Laws J held that the recommendations in the circular guidance that housing and social services authorities work together does not in itself convert that obligation into a legally enforceable duty Although the housing authority is not under any statutory duty to respond to or co-operate with a section 47(3) request,167 separate, parallel duties under the Housing Act (HA) 1996 may well be triggered. The housing authority will be under a duty to receive applications168 and to make enquiries under HA 1996 s184 in cases of homelessness and apparent priority need. As the application need not be in any particular form,169 it may be argued in appropriate cases that notication of housing need amounts in itself to an application made on behalf of the assessed person.170 As noted above, a failure to respond to a section 47(3) referral, or failure to respond within a reasonable time or in a reasonable manner, would be vulnerable to challenge as maladministration.
The referral obligation does not extend to another local authority on the transfer of ordinary residence
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R (Buckinghamshire CC) v Kingston upon Thames171 concerned the lawfulness of an assessment decision of the defendant (social services) authority, made without any reference to the claimant authority, to transfer a learning disabled adult from long-term residential care in the claimants area to a supported living arrangement there. The Court of Appeal upheld
See para 15.10. [2002] EWCA Civ 287, (2002) 5 CCLR 239. (1999) 2 CCLR 152, QBD. Unlike under CA 1989 s27: see R v Northavon DC ex p Smith [1994] 3 WLR 403, HL. R v Camden LBC ex p Gillan (1989) 21 HLR 114, DC. R v Chiltern DC ex p Roberts (1990) 23 HLR 387, DC. Disabled adults with insufcient mental capacity to make an application or authorise someone else to do so are not entitled to apply under Part VII of the 1996 Act see R v Tower Hamlets LBC ex p Begum [1993] 2 WLR 609, (1993) 25 HLR 319, HL; however, see also R (Patrick) v Newham LBC (2000) 4 CCLR 48, QBD considered at para 7.35 below. 171 [2011] EWCA Civ 457, (2011) 14 CCLR 427. 164 165 166 167 168 169 170
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the rst instance decision that there is neither a common law duty of fairness nor any duty arising under section 47(3) requiring notication, consultation or an invitation to participate in the assessment, although it was recognised that an exchange of information would be benecial (see para 3.73 above). At rst instance172 Wyn Williams J held that there is no duty under section 47(3)(b) to notify a housing authority were housing benet is going to be claimed as the duty only arises where there might be a need for the provision of services. However, the defendant authority should have should have taken the obvious step of seeking conrmation from the local housing authority that housing benet would be payable before the tenancy was entered into.
The service provision decision: what needs must be satised by the provision of services?
3.136
Once the authority has complied with its obligations under NHSCCA 1990 s47(1)(a) ie it has gathered together all the data it considers necessary (reports, interviews etc) section 47(1)(b) requires it to make a decision: to decide which of the individuals presenting needs call for the provision of community care services. Community care services are dened by NHSCCA 1990 s46 as services which a local authority may provide or arrange to be provided under: (a) Part III of the National Assistance Act 1948; (b) section 45 of the Health Services and Public Health Act 1968; (c) section 254 of, and Schedule 20 to, the National Health Service Act 2006, and section 192 of, and Schedule 15 to, the National Health Service (Wales) Act 2006; (d) section 117 of the Mental Health Act 1983.
3.137
NHSCCA 1990 s47(1)(b) obliges the authority to have regard to the results of the section 47(1)(a) assessment, rather than obliging it to provide services to meet all the presenting needs. It is this decision that is generally referred to as the service provision decision. It is of considerable importance, since it determines which community care services an individual is legally entitled to receive. It is the point at which the individuals needs are reconciled with the local resources that are available to meet such needs. As Swinton-Thomas LJ observed in the Court of Appeal decision in R v Gloucestershire CC ex p Barry:173
Section 47(1)(a) provides for the provision of Community Care Services generally, the need for such services, the carrying out of an assessment and then, section 47(1)(b) gives the Local Authority a discretion as to whether to
172 [2010] EWHC 1703 (Admin) at para 72. See also para 6.28 below. 173 [1996] 4 All ER 421, (199798) 1 CCLR 19, CA. Although reversed by the House of Lords ( [1997] 2 WLR 459, (199798) 1 CCLR 40, HL) these observations concerning the effect of NHSCCA 1990 s47(1) were in no way contradicted by the Lords.
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Community care and the law / chapter 3 provide those services. The discretion in making the decision under section 47(1)(b) arises by reason of the words having regard to the results of that assessment. In making that decision they will be entitled to take into account resources.
3.138
3.139
3.140
When a decision has to be made concerning the need for services under CSDPA 1970 s2, the service provision decision under section 47(1)(b) is deemed to chime with the inherent assessment obligation under section 2. Although in theory it appears that a council deciding whether a persons needs call for the provision of community care services is materially different from it deciding whether it is satised it is necessary to meet that persons needs, in practice the courts have determined that they are the same. How a need is dened can be problematic, as demonstrated in the judgment of the Supreme Court in R (McDonald) v Royal Borough of Kensington and Chelsea.174 The appellant, who had limited mobility, was initially assessed as needing assistance to use the commode at night. However, the respondent had been proposing to replace her night time personal assistants with continence pads as a cheaper option and following two care plan reviews re-cast her needs in broader terms as assistance with toileting, thus arguing that the re-dened need could be met through the use of night-time incontinence pads. The appellant was strongly opposed to this affront to her dignity (see paras 4.1104.113 below for a discussion of this aspect of the case) The majority of their Lordships were untroubled by this change in the description of what was essentially the same need, although Lord Kerr recognised that the need was difculties with mobility rather than with toileting, and accordingly decided that the appellants needs had not in fact changed at all. However, he still managed to nd the respondent had acted lawfully on the basis that the concept of needs incorporated the method of meeting them:
On that basis, it can be said that the reviews in 2009 and 2010, although it was not their purpose, in fact involved a re-assessment of the appellants needs and that they may now be regarded as the need to avoid having to go to the lavatory during the night. Viewed thus, the needs can be met by the provision of incontinence pads and suitable bedding. Not without misgivings, I have therefore concluded that it was open to the respondent to re-assess the appellants needs, to re-categorise them as a need to avoid leaving bed during the night and to conclude that that need could be met by providing the appellant with the materials that would obviate the requirement to leave her bed.
3.141
This semantic debate cost the appellant her night-time care support. The dissenting opinion of Baroness Hale asserted that the decision was irrational in the Wednesbury sense on the basis that the need had not in fact changed and was about access not toileting per se:175
174 [2011] UKSC 33, (2011) 14 CCLR 341. 175 See also Richard Gordon QC (2011) Counting the votes: a brief look at the McDonald case (2011) 14 CCLR 337.
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It seems to me that the need for help to get to the lavatory or commode is so different from the need for protection from uncontrollable bodily functions that it is irrational to confuse the two, and meet the one need in the way that is appropriate to the other. Of course, there may well be people who are persuaded that this is in fact a more convenient, comfortable and safer way of solving the problem; then it is no longer irrational to meet their need in this way.
The scope of the local authoritys discretion

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Although NHSCCA 1990 places responsibility on the social services authority for making the service provision decision, this does not of course mean that it is free to reach whatever decision it chooses. Social services decisions, like any public law decision, must be lawful, be reasonable, be in accordance with the evidence, must take into account all relevant factors and ignore all irrelevant ones (see para 26.207 below where these principles are further considered). Frequently the local authoritys decision is heavily inuenced by the views of third parties for instance as consultants, community nurses and occupational therapists. In such cases local authorities would need persuasive reasons to reject a clear opinion by such a professional on a matter within their area of expertise unless of course the authority has an equally authoritative and conicting report. The point being that there are limits to local authorities expertise and outside these areas they may be reliant on the conclusions of third parties (but see in this respect para 3.50 above). This will also be the case in relation to certain statements by non-professionals. Carers, for instance, are experts as to what they can and cannot do or more usually, what they are and are not prepared to do (see para 16.60 below). Likewise many of the statements made by the person being assessed will have to be accepted by social services; in some cases because these described preferences, but not always. For example, the extent of pain an individual experiences is not capable of objective calibration:
. . . medical professionals who are expert in pain do not recognise a direct link between clinical ndings and pain . . . As there is no direct causal link between disease or injury and pain, the only direct evidence of pain can come from the claimant.176
3.144
Even in those areas where a local authority is entitled to rely on its own expertise, it may still be under a duty to give reasons for rejecting the evidence or opinions of another particularly where that evidence or opinion is well informed and of central relevance to the assessment.
Individual nancial circumstances and the service provision decision

3.145
In making a service provision decision, in general an individuals nancial circumstances will only be relevant to the extent that he or she may be
176 Social Security Commissioners Decision CDLA 902 2004, 18 June 2004, para 15.
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required to contribute towards the cost of the service.177 It follows that the assessment of need should always precede any nancial assessment.
3.146
3.147
In limited circumstances the authority is permitted to have regard to the service users nancial circumstances in determining whether it is necessary to meet a presenting need. Most commonly this occurs in relation to residential care placements under National Assistance Act (NAA) 1948 s21. For the duty to be triggered under this section, the person must be in need of care and attention which is not otherwise available. The courts have accepted that if a person has assets above the limits specied in the legislation, then it may be reasonable for a local authority to conclude that the support is otherwise available. However, a duty to provide care home accommodation may subsist even where the subsequent nancial assessment reveals that the person has capital in excess of the upper capital limit if the individual lacks the capacity to make his or her own arrangements and has no one else willing and able to make the arrangements on his or her behalf (see para 7.22). The Prioritising Needs guidance summarises the position thus (para 71):
An assessment of the persons ability to pay for services should therefore only take place after they have been assessed as having eligible needs. A persons ability to pay should only be used as a reason for not providing services in circumstances where a person has been assessed as needing residential accommodation, the person has the means to pay for it and if the person, or someone close to them, is capable of making the arrangements themselves.
3.148
In the unusual fact case of R (Spink) v Wandsworth LBC178 the Court of Appeal held that where an application for a disabled facilities grant failed due to the applicants declining to provide details of their nancial circumstances, the authority could decide that the adaptations were not necessary under the CSDPA 1970 (see para 9.117).
Eligibility criteria and eligible needs

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Social workers need some external scale, formula or criteria in order to make consistent and sensible service provision decisions. Council treasuries also require standardised criteria in order to control overall expenditure: they have nite resources and need to ensure that these are applied equitably to those whose needs (however, this concept is dened) are greatest. Early guidance on eligibility criteria was provided in 1994, in what was
177 Some services and certain persons are exempt from charges considered in chapters 8 and 10 below. 178 [2005] EWCA Civ 302, [2005] 1 WLR 2884, (2005) 8 CCLR 272, a nding applied in Crofton v NHS Litigation Authority [2007] EWCA Civ 71, [2007] 1 WLR 923, (2007) 10 CCLR 123.
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termed the Laming Letter.179 It was this guidance that was central to the Gloucestershire proceedings180 and its suggestion that:
14. Authorities can be helped in this process by dening eligibility criteria, ie a system of banding which assigns individuals to particular categories, depending on the extent of the difculties they encounter in carrying out everyday tasks and relating the level of response to the degree of such difculties. Any banding should not, however, be rigidly applied, as account needs to be taken of individual circumstances. Such eligibility criteria should be phrased in terms of the factors identied in the assessment process.
3.151
The majority in the House of Lords in R v Gloucestershire CC ex p Barry181 approved of this approach, with Lord Clyde stating as follows:182
In deciding whether there is a necessity to meet the needs of the individual some criteria have to be provided. Such criteria are required both to determine whether there is a necessity at all or only, for example, a desirability, and also to assess the degree of necessity. Counsel for the respondent suggested that a criterion could be found in the values of a civilised society. But I am not persuaded that that is sufciently precise to be of any real assistance. It is possible to draw up categories of disabilities, reecting the variations in the gravity of such disabilities which could be experienced. Such a classication might enable comparisons to be made between persons with differing kinds and degrees of disability. But in determining the question whether in a given case the making of particular arrangements is necessary in order to meet the needs of a given individual it seems to me that a mere list of disabling conditions graded in order of severity will still leave unanswered the question at what level of disability is the stage of necessity reached. The determination of eligibility for the purposes of the statutory provision requires guidance not only on the assessment of the severity of the condition or the seriousness of the need but also on the level at which there is to be satisfaction of the necessity to make arrangements. In the framing of the criteria to be applied it seems to me that the severity of a condition may have to be to be matched against the availability of resources.
3.152
Although there are many theoretical models by which such criteria may be constructed, the Department of Health and Welsh Government have now issued detailed (and prescriptive) policy guidance that has standardised individual local authority eligibility criteria for community care services. These are the Prioritising Needs guidance 2010 (replacing FACS 2002 policy guidance) in England, and the UFSAMC 2002 policy guidance in Wales. The eligibility criteria sections of these two documents differ in only minor respects and both base their criteria on the issue of the poten179 CI (92) 34; although the guidance was expressed as being cancelled on 1 April 1994, Sedley J accepted that in the sense that it gives plainly sensible advice its content is still relevant although not mandatory see R v Islington LBC ex p Rixon (199798) 1 CCLR 119 at 127B, QBD. 180 R v Gloucestershire CC ex p Barry (199798) 1 CCLR 19 at 34, [1996] 4 All ER 421, CA. 181 [1997] 2 WLR 459, (199798) 1 CCLR 40, HL; in the context of an assessment of a persons need for services under CSDPA 1970 s2. 182 (199798) 1 CCLR 40, HL at 54.
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tial loss of independence (and, in the English guidance, well-being) if no or no further support is provided. As the Prioritising Needs guidance states (at para 44):183
Councils should use the eligibility framework set out below to specify their eligibility criteria. In setting their eligibility criteria, councils should take account of their own resources, local expectations, and local costs. Councils should take account of agreements with the NHS, including those covering transfers of care and hospital discharge. They should also take account of other agreements with other agencies, as well as other local and national factors.
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The evidence suggests that the introduction of nationally prescribed eligibility criteria has resulted in (or coincided with) a reduction in the number of service users who qualify for community care services.184 Additionally CSCI found that an eligibility-based framework increases the likelihood of front-line staff assessing for bands and services, rather than assessing peoples situations in terms of needs and risks.185 The framework detailed in the Prioritising Needs guidance (at para 54) is reproduced as diagram 5 below. The equivalent framework in the Welsh guidance186 adopts similar, though generally less demanding, phrasing. By way of example, the rst descriptor of the critical band in Wales states life is, or could be, threatened (as opposed to the English requirement that it is, or will be); the Welsh guidance places abuse or neglect (self or other) have occurred or are likely to occur in the critical band, whereas the critical band in England requires serious abuse or neglect has occurred or will occur. Diagram 5: Prioritising Needs guidance para 54 Critical when
life is, or will be, threatened; and/or Signicant health problems have developed or will develop; and/or there is, or will be, little or no choice and control over vital aspects of the immediate environment; and/or serious abuse or neglect has occurred or will occur; and/or there is, or will be, an inability to carry out vital personal care or domestic routines; and/or
183 UFSAMC 2002, para 5.19 in Wales. 184 Between 2003 to 2006 the number of older people receiving social care services fell from 867,000 people 840,000 despite a 3% increase in this age group see Commission for Social Care Inspection (CSCI) (2008) The state of social care in England 200607, Part one: p18. In total terms the number of adults receiving a community care service fell by 4.7% during 2009/10, with 83,930 fewer people receiving a service (from 1.78m to 1.7m) Care Quality Commission (2011) The state of healthcare and adult social care in England: an overview of key themes in care in 2009/10, HC 841. 185 Based on ndings of M Henwood and B Hudson (2008) Lost to the system? The impact of Fair Access to Care: a report commissioned by CSCI for the production of The state of social care in England 200607, p32. 186 UFSAMC 2002, para 5.16 in Wales.
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vital involvement in work, education or learning cannot or will not be sustained; and/or vital social support systems and relationships cannot or will not be sustained; and/or vital family and other social roles and responsibilities cannot or will not be undertaken.
Substantial when there is, or will be, only partial choice and control over the immediate environment; and/or abuse or neglect has occurred or will occur; and/or there is, or will be, an inability to carry out the majority of personal care or domestic routines; and/or involvement in many aspects of work, education or learning cannot or will not be sustained; and/or the majority of social support systems and relationships cannot or will not be sustained; and/or the majority of family and other social roles and responsibilities cannot or will not be undertaken.
Moderate when there is, or will be, an inability to carry out several personal care or domestic routines; and/or involvement in several aspects of work, education or learning cannot or will not be sustained; and/or Several social support systems and relationships cannot or will not be sustained; and/or Several family and other social roles and responsibilities cannot or will not be undertaken.
Low when there is, or will be, an inability to carry out one or two personal care or domestic routines; and/or involvement in one or two aspects of work, education or learning cannot or will not be sustained; and/or one or two social support systems and relationships cannot or will not be sustained; and/or one or two family and other social roles and responsibilities cannot or will not be undertaken.
Although all social services authority eligibility criteria must adopt the above framework, this does not mean that they must all come to the same service provision decisions. The guidance allows individual local authorities to decide how high on the scale an individual must be, before he or she qualies for services. Effectively therefore the guidance sanctions a continuation of the existing local variations in eligibility for services: the
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so called postcode lottery.187 The extent to which this margin of discretion can lawfully extend to limiting services to those whose needs are assessed as critical is considered below (see paras 3.2043.215 below) One of the tenets of personalisation is early intervention and prevention. This sits uncomfortably alongside a system of service provision based on prioritising highest needs. The Prioritising Needs guidance, at paragraph 35, tries to square the circle:
In Cutting the Cake Fairly,188 CSCI identied evidence that raising eligibility thresholds without putting in place adequate preventative strategies often leads to a short term dip in the number of people eligible for social care followed soon after by a longer-term rise. Councils should therefore avoid using eligibility criteria as a way of restricting the number of people receiving any form of support to only those with the very highest needs. Rather, they should consider adopting a strong preventative approach to help avoid rising levels of need and costs at a later stage. Early interventions can also improve general community well-being and wider social inclusion.
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3.159
This has led to an emphasis in England on universal and targeted services for those whose presenting needs do not (as yet) meet the local authoritys eligibility criteria. Although the Welsh Government has chosen not to adopt the term personalisation, which it regards as too closely associated with a market-led model of consumer choice,189 it has embraced the concept of the local authority facilitating community-based provision to ll the gaps left by narrowing eligibility criteria190. These options are discussed in more detail in chapter 4. The overall process prescribed in the English and Welsh guidance accordingly follows the following sequence: 1) the local authority ascertains the extent of the individuals presenting needs; 2) these presenting needs are subjected to a risk analysis (risk of harm to the user and others and risks to independence and well-being); 3) these risks are then compared to the above framework categories critical, substantial, medium or low; 4) if the individuals presenting needs fall into one or more of the categories of risk that the local authority has decided that it will provide services to meet, then the local authority must meet those needs: such needs being termed eligible needs.191 To assist in the second stage of the above analysis, the Prioritising Needs guidance, states:
3.160
187 Audit Commission (1996) Balancing the Care Equation: Progress with Community Care, para 32 considered above at para 3.28. 188 Commission for Social Care Inspection (2008) Cutting the cake fairly: CSCI review of eligibility criteria for social care. 189 Sustainable social services: a framework for action WAG 1011086, 2011, para 3.16. 190 Sustainable social services: a framework for action WAG 1011086, 2011, para 3.22 191 Prioritising Needs guidance, para 52; UFSAMC 2002 policy guidance, para 5.14.
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59. Councils should work with individuals to explore their presenting needs and identify what outcomes they would like to be able to achieve. In this way they can evaluate how the individuals presenting needs might pose risks to their independence and/or well-being, both in the immediate and longer-term. Councils should also consider with the individual any external and environmental factors that have caused, or exacerbate, the difculties the individual is experiencing. 60. In particular councils should consider whether the individuals needs prevent the following Exercising choice and control; Health and well-being, including mental and emotional as well as physical health and well-being; Personal dignity and respect; Quality of life; Freedom from discrimination; Making a positive contribution; Economic well-being; Freedom from harm, abuse and neglect, taking wider issues of housing and community safety into account.
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3.162
3.163
In Wales, in contrast, the UFSAMC 2002 policy guidance (para 5.10) denes four key factors to maintaining independence autonomy, health and safety, managing daily routines and involvement. In essence therefore the assessor should ask what are the risks to a persons independence and well-being if no services are provided; or put another way, what would be the consequences for the individual, if services are not provided? The answer is then categorised in terms of critical, substantial, medium or low. The Prioritising Needs guidance helpfully warns against a hierarchical or discriminatory approach to needs, which may relegate the importance of independence and social inclusion. Instead it encourages a human rights based approach (para 61):
Councils should be aware that the risks to independence and well-being relate to all areas of life, and that with the exception of life-threatening circumstances or where there are serious safeguarding concerns, there is no hierarchy of needs. For example, needs relating to social inclusion and participation should be seen as just as important as needs relating to personal care issues, where the need falls within the same band. A disabled person who is facing signicant obstacles in taking up education and training to support their independence and well-being should be given equal weight to an older person who is unable to perform vital personal care tasks and vice versa. Councils should make decisions within the context of a human rights approach, considering peoples needs not just in terms of physical functionality but in terms of a universal right to dignity and respect
3.164
Having identied an eligible need, the local authority must then meet it:
Once eligible needs are identied, councils should take steps to meet those needs in a way that supports the individuals aspirations and the outcomes that they want to achieve. (Support may also be provided to meet other presenting needs as a consequence of, or to facilitate, eligible needs being
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Community care and the law / chapter 3 met.) Throughout the process of assessment, people should be supported and encouraged to think creatively about how their needs can best be met and how to achieve the fullest range of outcomes possible within the resources available to them.192
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3.166
The community care reforms sought to challenge procrustean attitudes towards service provision pigeon-holing disabled people into one of a dozen or so existing services. At times, however, (as above) the Prioritising Needs guidance seems to be suggesting that this can be replaced by pre-service provision pigeon-holing into only four dened categories. The importance of a wider perspective was identied in R (Heffernan) v Shefeld City Council193 where Collins J expressed concern about the compartmentalisation of needs based upon a signicant health problem commenting that the existence of signicant . . . health problems will not of itself result in any particular need, although the need to prevent development of such problems may. Although this judgment has been the subject of criticism,194 it is perhaps best viewed as a difcult fact case where the judge found this eligibility approach to be severely limited. The development of the concept of an outcomes-focussed approach to both assessments and service provision, reected in the Prioritising Needs guidance (see eg para 83 quoted at 3.101) and more widely in the literature of personalisation, encourages far greater exibility. It represents a fundamental shift in the approach to service provision (see chapter 4). Outcomes, in this context, have been described as, The impacts or end results of services on a persons life. Outcomes-focussed services therefore aim to achieve the aspirations, goals and priorities identied by service users.195
Consulting on and revising eligibility criteria

3.167
The formulation of eligibility criteria is a core policy function of social services authorities. The Prioritising Needs guidance directs that, councils should consult service users, carers and appropriate local organisations in formulating, reviewing and publishing their criteria.196 It is anticipated that councils will review their criteria in line with their usual budget cycles; additionally if an unforeseen nancial crisis arises (for instance of the type that resulted in the Gloucestershire proceedings), emergency changes to the criteria may have to be instigated,197 but in the absence of such situations, criteria should not be the subject of frequent amendments. If this were otherwise, and criteria were changed frequently, service users would have no idea from day to day where their entitlements lay effectively comparing their need against a moving target. Such a
192 193 194 195 Prioritising Needs guidance, para 53. [2004] EWHC 1377 (Admin) (2004) 7 CCLR 350 at [16]. See eg (2004) 14 Journal of Community Care Law 2. C Glendinning, S Clarke, P Hare, I Kotchetkova, J Maddison and L Newbronner (2006) Adults Services Knowledge Review 13: Outcomes-focused services for older people, London: Social Care Institute for Excellence, p2. 196 Prioritising Needs guidance, para 45, and UFSAMC 2002 policy guidance, para 2.17. 197 Prioritising Needs guidance, para 46 and UFSAMC 2002 policy guidance, para 5.22.
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situation would give pre-eminence to short term nancial issues if not make them determinative. The issues that arise in relation to raising the bar to critical only are considered below (see paras 3.2043.215).
Resources and the limits of eligibility criteria

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In R v Gloucestershire CC ex p Barry198 the House of Lords considered the legality of eligibility criteria. The case arose because the authority had its resources for community care drastically cut by an unexpected change in the size of the grant made by the Department of Health. The authority wrote to those people (about 1,500) on its lowest priority level advising them it had decided that their home care service would be reduced or withdrawn. Some of the people who were affected, who were receiving their services under CSDPA 1970 s2, sought a judicial review of the decision. Their basic argument was straightforward; their condition had not changed and so their need for services remained. How could the state of an authoritys nances make their individual need no longer a need? The solution adopted by the House of Lords (a majority 3:2 judgment) was that authorities can (within limits) change their eligibility criteria and if they then become more austere, they can reassess existing service users against these new criteria. If on such a reassessment it is found that they are no longer eligible for assistance, the service can be withdrawn. Accordingly it had been lawful for Gloucestershire to take into account its resources when framing its eligibility criteria, but unlawful for it to withdraw services without a prior reassessment. The majority decision, in relation to the resource argument, has been criticised199 and the Lords themselves have sought to restrict the impact of the decision. Subsequently, in Re T (A Minor),200 a differently constituted House of Lords held that resource arguments in the ex p Barry decision were in large measure restricted to cases concerning CSDPA 1970 s2, the statutory construction of which the Lords held to be a strange one.201 Indeed the court found certain aspects of the majoritys reasoning in ex p Barry to be with respect . . . very doubtful . . ..202 A similar line was taken by the Court of Appeal in R v Sefton MBC ex p Help the Aged 203 where the Master of the Rolls felt compelled to follow the reasoning of the majority in the ex p Barry decision, but only to a limited degree. The Court of Appeal effectively distinguished the ex p Barry decision, as one peculiar to the situation under CSDPA 1970 s2. This line was also adopted by Scott Baker J in R v Bristol City Council ex p Penfold 204 when he rejected the
198 [1997] 2 WLR 459, (199798) 1 CCLR 40, HL. 199 See eg B Rayment, Ex p Barry in the House of Lords (1997) 2 Judicial Review 158 and L Clements, The collapsing duty (1997) 2 Judicial Review 162. 200 Sub nom R v East Sussex CC ex p Tandy [1998] 2 WLR 884, (199798) 1 CCLR 352, HL. 201 (199798) 1 CCLR 352 at 359I, HL. 202 (199798) 1 CCLR 352 at 360G, HL. 203 [1997] 4 All ER 532, (199798) 1 CCLR 57 at 67H, CA. 204 (199798) 1 CCLR 315, QBD.
100 Community care and the law / chapter 3
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respondents argument that its resource problems justied its refusal to carry out a community care assessment. It was also adopted by Dyson J in R v Birmingham CC ex p Mohammed205 where he held that housing authorities were not entitled to take resources into account when deciding whether or not to approve a disabled facilities grant, in this case because of the specicity of the statutory criteria.206 The effect of the Gloucestershire and subsequent judgments is that social services authorities are entitled to take their available resources into account, when framing their general eligibility criteria. This principle is, however, subject to four signicant constraints. These can be summarised as: 1) the reassessment obligation; 2) the duty to meet eligible needs; 3) resources cannot be the sole criterion; 4) the Human Rights Act (HRA) 1998 obligation.
The reassessment obligation

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As noted, local authorities are entitled (within limits) to change their eligibility criteria (for instance when they have a budgetary problem as occurred in the Gloucestershire case). However, when criteria are revised and made more severe, existing service users must be the subject of a full individual community care reassessment before any decision can be taken on the withdrawal of services. The logic for this requirement is two-fold: rst, that the service users circumstances may have altered since their previous assessment and so they may be eligible under the new, more austere criteria; and second, even if their needs do not satisfy the revised criteria, the criteria are not determinative and so there may be special reasons why the services should continue notwithstanding. McCowan LJ highlighted this requirement in the rst instance hearing of the Gloucestershire case207 when he held:
It would certainly have been open to the Gloucestershire County Council to reassess the individual applicants as individuals, judging their current needs and taking into account all relevant factors including the resources now available and the competing needs of other disabled persons. What they were not entitled to do, but what in my judgment they in fact did, was not to re-assess at all but simply to cut the services they were providing because their resources in turn had been cut. This amounted to treating the cut in resources as the sole factor to be taken into account, and that was, in my judgment, unlawful.
205 [1999] 1 WLR 33, (199798) 1 CCLR 441, QBD. 206 See Housing Grants, Construction and Regeneration Act 1996 s23. 207 R v Islington, LBC ex p McMillan, R v Gloucestershire CC ex p Mahfood, Barry, Grinham and Dartnell (199798) 1 CCLR 7, DC.
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The duty to meet eligible needs

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The 1992 Laming Letter208 stated as follows:

13. An authority may take into account the resources available when deciding how to respond to an individuals assessment. However, once the authority has indicated that a service should be provided to meet an individuals needs and the authority is under a legal obligation to provide it or arrange for its provision, then the service must be provided. It will not be possible for an authority to use budgeting difculties as a basis for refusing to provide the service.
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The legality of the Laming Letter advice on resources was in issue (and upheld) in the Gloucestershire case. McCowan LJ in the rst instance hearing expressed the legal position thus:209
. . . once they have decided that it is necessary to make the arrangements, they are under an absolute duty to make them. It is a duty owed to a specic individual and not a target duty. No term is to be implied that the local authority are obliged to comply with the duty only if they have the revenue to do so. In fact, once under that duty resources do not come into it.
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In the House of Lords Lord Clyde reiterated this point in the following terms:210
The right given to the person by section 2(1) of the Act of 1970 was a right to have the arrangements made which the local authority was satised were necessary to meet his needs. The duty only arises if or when the local authority is so satised. But when it does arise then it is clear that a shortage of resources will not excuse a failure in the performance of the duty.
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Lord Clydes approach was followed by Lord Woolf MR in R v Sefton MBC ex p Help the Aged211 in relation to the duties under the NAA 1948 and is expressed by the Prioritising Needs guidance (at para 124)212 as follows:
Councils should plan with regards to outcomes, rather than specic services. They should consider the cost-effectiveness of support options on the merits of each case and may take their resources into account when deciding how best to achieve someones agreed outcomes. However, this does not mean that councils can take decisions on the basis of resources alone. Once a council has decided it is necessary to meet the eligible needs
208 CI (92) 34; although the guidance was expressed as being cancelled on 1 April 1994, Sedley J accepted that in the sense that it gives plainly sensible advice its content is still relevant although not mandatory see R v Islington LBC ex p Rixon (199798) 1 CCLR 119 at 127B, QBD. 209 R v Gloucestershire CC ex p Mahfood (199798) 1 CCLR 7, DC; and see also R v Kirklees MBC ex p Daykin (199798) 1 CCLR 512 at 525D, QBD, where Collins J expressed the proposition in the following terms, once needs have been established, then they must be met and cost cannot be an excuse for failing to meet them. The manner in which they are met does not have to be the most expensive. The Council is perfectly entitled to look to see what cheapest way for them to meet the needs which are specied. 210 [1997] 2 WLR 459 at 474G, (199798) 1 CCLR 40 at 54F, QBD. 211 [1997] 4 All ER 532, (199798) 1 CCLR 57 at 67I, CA. 212 UFSAMC 2002 policy guidance, para 5.32.
102 Community care and the law / chapter 3 of an individual, it is under a duty to provide sufcient support to meet those needs.
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The principle underlying this formulation is of fundamental importance. All local authorities have limited resources and all are required to full a variety of statutory obligations. If a council could assert resource shortages as a reason for not complying with a statutory duty, this would effectively result in these duties being collapsed into powers (as Richard Gordon QC argued in the Gloucestershire case). The resolution of this problem is achieved in the Gloucestershire judgment by the court holding that the duty to provide community care services only arises once a service provision decision under NHSCCA 1990 s47(1)(b) has occurred. However, once a local authority has decided that a person has eligible needs, these must be met irrespective of resource arguments. In Re T (A Minor),213 Lord Browne-Wilkinson dealt with this issue as follows:
There remains the suggestion that, given the control which central Government now exercises over local authority spending, the court cannot, or at least should not, require performance of a statutory duty by a local authority which it is unable to afford . . . My Lords I believe your Lordships should resist this approach to statutory duties. . . . The argument is not one of insufcient resources to discharge the duty but of a preference for using the money for other purposes. To permit a local authority to avoid performing a statutory duty on the grounds that it prefers to spend the money in other ways is to downgrade a statutory duty to a discretionary power. A similar argument was put forward in the Barry case but dismissed by Lord Nicholls (at p470FG) apparently on the ground that the complainant could control the failure of a local authority to carry out its statutory duty by showing that it was acting in a way which was Wednesbury unreasonable in failing to allocate the necessary resources. But with respect this is a very doubtful form of protection. Once the reasonableness of the actions of a local authority depends upon its decision how to apply scarce nancial resources, the local authoritys decision becomes extremely difcult to review. The court cannot second-guess the local authority in the way in which it spends its limited resources: see also R v Cambridge District Health Authority ex parte B [1995] 1 WLR 898, especially at p906DF. Parliament has chosen to impose a statutory duty, as opposed to a power, requiring the local authority to do certain things. In my judgment the courts should be slow to downgrade such duties into what are, in effect, mere discretions over which the court would have very little real control. If Parliament wishes to reduce public expenditure on meeting the needs of sick children then it is up to Parliament so to provide. It is not for the courts to adjust the order of priorities as between statutory duties and statutory discretions.
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It follows that once a local authority has assessed an individual as having eligible needs then any failure to provide services to meet those needs will be open to legal challenge. In R v Wigan MBC ex p Tammadge,214 for example, the applicant lived with her four children, three of whom had
213 [1998] 2 WLR 884, (199798) 1 CCLR 352 at 360, HL. 214 (199798) 1 CCLR 581, QBD.
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severe learning disabilities. Over a considerable period of time she sought a larger property in order to be able to better provide for their needs; a complaints panel concluded this was needed, a view accepted by social services and conrmed by a multi-disciplinary meeting. However, a meeting of senior ofcers and members decided, however, that it was not appropriate to commit the authority to the purchase or adaptation of a larger property. In quashing that decision, Forbes J held that Wigans own professionally qualied staff and advisors had concluded that that her need for larger accommodation had been established. Once the duty had arisen in this way, it was not lawful of Wigan to refuse to perform that duty because of shortage of or limits upon its nancial resources. Many cases concerning inadequate service provision arrangements have been considered by the local government ombudsman, and are cited in the following paragraphs (see also para 3.191 below). In some cases the ombudsman recommends not insignicant sums in compensation.215
Waiting lists and delayed service provision decision

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Rather than refusing to provide a service to meet an eligible need, councils may merely delay their decision: for instance by simple prevarication or by adopting unnecessary processes (eg continually referring the case back for further information, reports etc) or by the use of a lengthy waiting list. In R v South Lanarkshire Council ex p MacGregor216 the applicant was one of 199 people in the councils area who (due to the local authoritys limited resources) were on a waiting list for a place in a nursing home, of whom 106 were in hospitals. The court (the Outer House of the Court of Session) held that the policy was unlawful, and that:
. . . once a local authority determines that an individuals needs call for a particular provision the local authority is obliged to make that provision. In particular having decided that an individual requires the provision of a permanent place in a nursing home . . . a local authority could not . . . refuse to make such a provision simply because it did not have the necessary resources.
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The local government ombudsman has made similar ndings. For example in 2001 the ombudsman upheld a complaint against Cambridgeshire that a resource-led policy that delayed the provision of residential care (once the person had been assessed as needing it) was maladministration,217 and in a complaint against Essex218 stated:
215 See para 26.63 below where the ombudsmans approach to compensation is considered further, and see eg, Complaint no 04/A/10159 against Southend on Sea BC, 1 September 2005 where the authority agreed to pay a total of 35,000 in compensation to a family, where it had delayed for over two years in providing adequate services for the applicants adult son who had learning and behavioural disabilities. 216 (2000) 4 CCLR 188, (CS(OH)). 217 Complaint no 99/B/04621 against Cambridgeshire CC, 29 January 2001. 218 Complaint no 00/B/00599 against Essex CC, 3 September 2001.
104 Community care and the law / chapter 3 The Council believes it does not have to provide a care service or funding for care immediately it has decided that it is necessary to provide the service to meet a persons assessed needs. It considers that it is acting correctly by having a waiting list on which the time a person may have to wait for resources to become available is indeterminate and depends to a signicant extent on the needs and priority of other people on the waiting list and those who may come on to the list. That cannot, in my view, be correct.
Interim arrangements/physical resource shortages

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The courts have reacted differently where the shortage concerns physical or human resources as opposed to nancial. In such cases the courts have generally been more sympathetic to the local authority position provided it is taking reasonable steps to resolve the problem. Thus in R v Lambeth LBC ex p A1 and A2 219 the Court of Appeal held that provided the authority was making a sincere and determined effort to resolve the physical resource problem, it would not intervene. However, where an authority makes no such effort, the situation will be otherwise. In R v Islington LBC ex p Rixon,220 for instance, Sedley J considered that a local authority could not assess someone as needing a service (in this case a day centre placement) and then fail to provide it, merely because none was available. This reason, alone would be insufcient:
There are two points at which, in my judgment, the respondent local authority has fallen below the requirements of the law. The rst concerns the relationship of need to availability . . . [T]he local authority has, it appears, simply taken the existing unavailability of further facilities as an insuperable obstacle to any further attempt to make provision . . .
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It also follows that where the rst choice service is not available, in addition to demonstrating that it is taking purposeful steps to resolve the service supply problem (including if needs be, commissioning an independent specialist to help identify and secure a suitable provider or placement221) the local authority will be required to make alternative interim arrangements as the Prioritising Needs guidance222 states:
Councils should provide support promptly once they have agreed to do so, but where waiting is unavoidable, they should ensure that alternative support is in place to meet eligible needs.
3.187
Where the delay is caused by a lack of suitable provision to meet the assessed need and the local authority can show no convincing evidence of reasonable efforts to discharge its continuing statutory duty it will be acting unlawfully in breach of that duty.223 Similarly, the local government
219 (199798) 1 CCLR 336, CA and see also R v Islington BC ex p McMillan (199798) 1 CCLR 7 at 17, QBD. 220 (199798) 1 CCLR 119 at 130F, QBD. 221 Complaint no 02/B/10226: against Cambridgeshire CC, 6 July 2004. 222 Para 124; UFSAMC 2002 policy guidance, para 5.35. 223 LW: Re. Judicial Review [2010] NIQB 62, 19 May 2010, applying a provision substantially the same as CSDPA 1970 s2.
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ombudsman is prepared to investigate the causes of a delay due to alleged human resource problems such as recruitment difculties and may not always be satised that these are outside a councils control.224
Allocation and funding panels

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Many local authorities use panels of various types (sometimes termed allocation panels, funding panels or purchasing panels) as a means of rationing services. In effect they constitute a non-statutory post service provision decision hurdle that applicants must traverse. R v Wigan MBC ex p Tammadge225 (para 3.178 above) is an example: objectively the authority had made a decision that the applicants presenting needs called for the provision of services. However, the individual ofcers were unable to progress this, since the local authoritys procedures stated that only a panel meeting was able to make a formal decision on resource allocation; a meeting at which the assessing social worker had little or no role. This is not untypical of the procedures adopted by many local authorities. In response to judicial and ombudsmen doubts concerning the legality of these panels, some authorities have endeavoured to project these panels as quality control mechanisms namely to ensure that their social workers have completed the assessment correctly.226 Not infrequently the panel will refer a funding application back for further analysis or paperwork to be completed. The effect of this is to create delay, which arguably is the whole point of the exercise: the protection of resources by (among other things) deferring service provision. Occasionally, however, as in R v South Lanarkshire Council ex p MacGregor,227 the panel is more blatant: in that case it openly restricted access to residential care solely on the basis of the authoritys budget. Commenting upon this unfortunately commonplace and unlawful practice in evidence to the Joint Committee on Human Rights,228 the charity Help the Aged explained that it persisted because:
Individual cases are settled to avoid threatened litigation, but the widespread use of funding panels to ration care continues. Individuals
224 See eg report on complaint no 08 017 856 against Redbridge LBC, 6 August 2009, para 23 a Special Educational Needs case concerning Occupational Therapist delays and complaint no 10008979 against Liverpool City Council, 4 April 2011, where the delay in providing support was substantially aggravated by the landlords inaction: the LGO nonetheless found maladministration by the council in failing both to meet the assessed need in a reasonable timescale or to act once it knew of the landlords delay. 225 (199798) 1 CCLR 581, QBD. 226 Many of those authorities that suggest their panels are quality control mechanisms commonly have difculty in sustaining this argument, when their councils minutes are reviewed. Not unusually it can be shown that the panel was created as a response to a budgetary problem rather than as a response to a concern about the quality of social workers assessments. Indeed if this were the problem one would assume that the logical response would be to improve the quality of their training. 227 (2001) 4 CCLR 188. 228 Memorandum from Help the Aged contained in the Appendices to the Sixth Report of the Joint Committee on Human Rights, The Case for a Human Rights Commission, 19 March 2003. Report together with Proceedings of the Committee HL 67-I; HC 489-I.
106 Community care and the law / chapter 3 then nd themselves unable to access essential services they have been assessed as needing, thus forcing them to live in conditions which, in some cases, may be sufciently severe as to constitute inhuman and degrading treatment within the meaning of Article 3 and potentially put their lives at risk. There is, as far as we know, no monitoring of how many people die in their homes or following emergency admission to hospital because they have been denied a service they were assessed as needing.
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3.191
3.192
Panels create a fault line between the data collection phase of the assessment process and the service provision decision. In so doing they reduce a persons needs to the bare words of the assessment paperwork or to scores on a spreadsheet: they sideline (or remove completely) the assessing social worker from the decision making process and with him or her the element of discretion that is essential to any informed decision on such personal questions as the extent of human need. In effect they represent the end game in Michael Lipskys analysis of street-level bureaucracy (see para 3.3 above), where without the knowledge of the disabled person the human judgment that cannot be programmed and for which machines cannot substitute is in fact removed from the process. In R (Goldsmith) v Wandsworth LBC,229 a service provision decision was overturned, inter alia, because the panel had not even had the community care assessment before it an assessment the Court of Appeal found impressive by its thoroughness The local government ombudsmen have considered many complaints concerning panel decisions. A frequent scenario concerns disabled people with complex needs which require potentially expensive care packages and in relation to which a social worker will have undertaken considerable research and recommended a particular care plan. The care plan is then considered by a panel and rejected essentially the social worker being required to trim the assessment of need to t the budget (to paraphrase Sedley J230) even though no suitable alternative exists. A 2005 ombudsmans report231 is illustrative in this respect. It concerned the placement of a learning disabled adult in a series of inappropriate care homes. His social worker had undertaken a detailed assessment of needs and identied a suitable placement after a long, careful process over many months. However, her plan was rejected by the councils Care Purchasing Panel relying on advice from an acting manager who barely knew the service user (he had observed him at most on three occasions in a day centre). The alternative care package proposed proved to be unsuitable and ultimately once the ombudsman had become involved a suitable placement was secured. In the ombudsmans opinion:
Having correctly prepared a detailed assessment in accordance with the statutory guidance, it was wrong for the Council to dismiss all the information gathered in that process, and make a decision on the basis of
229 [2004] EWCA Civ 1170, (2004) 7 CCLR 472. 230 Sedley J referred to trimming the assessment of need to t available provision in R v Islington LBC ex p Rixon (199798) 1 CCLR 119 at 129B, QBD. 231 Complaint no 04/A/10159 against Southend on Sea BC, 1 September 2005.
Community care assessments [the acting managers] assurance. The decision ew in the face of the assessment.
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Even where a panel accepts that a specic care plan is required, it not infrequently defers funding, essentially to address the authoritys cash ow demands (as occurred in R v South Lanarkshire Council ex p MacGregor 232). A 2001 complaint against Essex233 concerned such a practice. A council social worker had assessed the complainants mother as in need of residential care and prepared a care plan naming an appropriate care home. This came before the purchasing panel which accepted the plan, but decided that the need was not of sufcient priority to justify immediate funding and so her name was placed on a waiting list. The local government ombudsman considered that this amounted to maladministration; that there was no justication for the councils use of a waiting list for funding care which is otherwise available and which only comes into operation after the council has decided that it will provide a service to meet particular needs. Whilst the widespread use by local authorities of funding panels has attracted criticism, this is not to say that all panels are unlawful. There is nothing inherently objectionable about a panel of social care experts being called upon to make a decision concerning the necessary elements of a complex care package (where of course it has the necessary expertise to discharge such a role). Thus in R (Rodriguez-Bannister) v Somerset Partnership NHS and Social Care Trust234 the court found not unreasonable the role of a panel whose primary task was to determine the kind of accommodation that was required, whether residential, supported living or other, and not to make recommendations about the necessary levels of support in any particular setting.
Resources cannot be the sole criterion

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Although councils are entitled to take into account the extent of their available resources when they frame their eligibility criteria, they cannot make resource availability the sole criterion: resource availability alone cannot be determinative. In many situations it appears that this is precisely what allocation or funding panels do (see para 3.188 above). Likewise the application by an authority of a rigid costs ceiling would have the same effect (see para 4.97 below). In the Gloucestershire decision Hirst LJ (in the Court of Appeal) held that resources were no more than one factor in an overall assessment, where no doubt the objective needs of the individual disabled person will always be the paramount consideration.235 In the rst instance decision McCowan LJ when quashing the decision of the county council (to withdraw services without reassessment) stated that this amounted to
232 233 234 235 (2001) 4 CCLR 188 see para 3.188 above. Complaint no 00/B/00599, 3 September 2001. [2003] EWHC 2184 (Admin), (2004) 7 CCLR 385. R v Gloucestershire CC ex p Barry [1996] 4 All ER 421, (199798) 1 CCLR 19 at 31G, QBD.
treating the cut in resources as the sole factor to be taken into account, and that was, in my judgment, unlawful.236
The Human Rights Act 1998 obligation237

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There is a point at which resource availability ceases to be a legitimate reason for refusing to provide services; or, put another way, there is a level of austerity beyond which eligibility criteria cannot venture. This aspect of the argument was articulated by McCowan LJ in the rst instance Gloucestershire judgment,238 when he observed:
I should stress, however, that there will, in my judgment, be situations where a reasonable authority could only conclude that some arrangements were necessary to meet the needs of a particular disabled person and in which they could not reasonably conclude that a lack of resources provided an answer. Certain persons would be at severe physical risk if they were unable to have some practical assistance in their homes. In those situations, I cannot conceive that an authority would be held to have acted reasonably if they used shortage of resources as a reason for not being satised that some arrangement should be made to meet those persons needs.
3.198
The Gloucestershire proceedings took place prior to the enactment of the Human Rights Act (HRA) 1998; using the language of the European Convention on Human Rights (the Convention) McCowan LJ was, in effect, stating that limited resources could not be used as a reason for allowing a violation of Article 3 to take place. There can be little doubt that domestic law recognises a core set of positive justiciable, non-resource dependent rights the uncertainty relates to their scope. As Lord Hoffman (speaking extra judicially) has commented:239
Human rights probably include not only freedom from certain forms of state interference but also a positive obligation upon the State to provide every citizen with certain basic necessities which he requires in order to be able to function as a human being.
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3.200
Arguably, therefore, there is a point at which simple decisions about the provision of community care services cross over from the realm of socioeconomic rights and into the domain of those civil and political rights protected by the Convention. Although this may be an overly simplistic reading of these two categories of rights, it nevertheless serves as a useful device for considering the austerity limits of eligibility criteria. In relation to social care services, it is perhaps self evident that services could not be denied (on resource grounds) if the consequence were that the disabled persons life was at risk, or that signicant health problems
236 R v Gloucestershire CC ex p Mahfood (199798) 1 CCLR 7 at 16I, DC. 237 For a brief review of the relevant provisions of the European Convention on Human Rights see para 27.237. 238 R v Gloucestershire CC ex p Mahfood (199798) 1 CCLR 7, DC. 239 L Hoffman, The Separation of Powers, Annual Commercial Bar Lecture, COMBAR, 2001, unpublished transcript.
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would develop or that there was a risk of serious abuse or neglect occurring. In effect, therefore, the core set of social care rights are at least those detailed in the critical category of the prescribed eligibility framework (see para 3.155 above); these being risks associated with Articles 2 and 3 of the Convention. The same could be argued in relation to Article 5. R v Manchester City Council ex p Stennett,240 for instance, concerned the right of detained patients to free aftercare services under Mental Health Act 1983 s117. The court accepted that in many cases patients were only discharged from their detention in psychiatric wards if they agreed to move into a specialist care home. It was argued, therefore, that to require payment for this service would, in effect, be requiring a patient to pay for his or her freedom.241 Lord Steyn found such a proposition compelling, stating:
It can hardly be said that the mentally ill patient freely chooses such accommodation. Charging them in these circumstances may be surprising . . . If the argument of the authorities is accepted that there is a power to charge these patients such a view of the law would not be testimony to our society attaching a high value to the need to care after the exceptionally vulnerable.
3.202
3.203
It follows that a resource argument alone will seldom dispose of a claim to respect for a Convention right. In relation to the Articles 2, 3 and 5 rights, nancial resource arguments will rarely if ever be relevant. Even in relation to qualied rights, such as Article 8, where the state can legitimately play the resource card, it cannot expect it to trump all others particularly where the consequences of inaction for the applicant are serious. We separately discuss at para 4.64 below the extent to which the resource card can be played in relation to the independent living obligation and the provision of minimum services the dignity principle. However, where the Article 8 right in question is fundamental for instance the right to a sexual relationship, then the cost impact will be subject to particular scrutiny. A local authority v MM and KM242 concerned a person whose mental health problems were such that she was adjudged to lack capacity to decide where she should live, to marry or to manage her own money but that she did have capacity to have sexual relations. The Court required the authority to make arrangements to facilitate her long term relationship with her boyfriend (a relationship that had been turbulent) and observed (para 165):
the local authority cannot in this connection seek to avoid its positive obligations [under Article 8 of the European Convention on Human Rights] by seeking to toll the bell of scarce resources. . . . the additional nancial burden which this may impose on the local authority is
240 [2002] UKHL 34, [2002] 3 WLR 584, (2002) 5 CCLR 500. 241 If a patient remains detained purely for reasons of nancial expediency, it would appear that the Article 5 liability would fall on the detaining body rather than the body responsible for the delay see R (S) v Halton BC and the Parole Board [2008] EWHC 1982 (Admin). 242 [2007] EWHC 2003 (Fam), (2008) 11 CCLR 119. See also Re Connor [2004] NICA 45, (2005) 8 CCLR 328.
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comparatively modest given the overall cost of its provision for MM. And the right in play here is, to repeat, too important, too precious in human terms, to be swept aside by such purely scal considerations.
The critical/substantial bands

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A survey by Community Care magazine in September 2010 found 3 per cent of English local authorities operated a critical only threshold with several more considering following suit. 72 per cent of authorities surveyed limited services to critical and substantial bands.243 Decisions to move to critical only have been successfully challenged, primarily on equality grounds (see paras 3.2113.215 below), and the legal considerations are set out below. Any analysis of this question must rst acknowledge the latitude provided by some of the critical band descriptors. Local authorities may, for instance, vary widely in how they interpret:

3.206
signicant health problems; little or no choice and control over vital aspects of the immediate environment; serious abuse or neglect; an inability to carry out vital personal care or domestic routines.
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However, some of the criteria in the substantial band give a steer as to the meaning of the critical band descriptions, and suggest that the bar to be crossed in order to register a critical need is a high one.244 For instance abuse or neglect (apart from when it is serious) only scores a substantial rating as does a person who is unable to carry out the majority of [his or her] personal care or domestic routines or to sustain the majority of [his or her] social support systems and relationships. Such an analysis suggests that the Department of Health considers it acceptable to deny support to people who are being abused and neglected, and who are unable to attend to most of their personal care needs. Such a criticism is less easily levied against the Welsh Government guidance, which (for instance) requires all abuse (not merely serious abuse) to be recorded as critical. The acceptance of non-serious abuse ies in the face of SCIE guidance that requires commissioners of services to have a a zero tolerance of all forms of abuse.245 In R (A and B, X and Y) v East Sussex CC246 Munby J dwelt at length on the core value of human dignity as a component of Articles 3 and 8 of the Convention. In his opinion thoughtless, uncaring and uncharitable
243 www.communitycare.co.uk/Articles/2010/09/15/115321/councils-to-deny-socialcare-support-to-all-but-most-needy.htm 244 Indeed in R (W) v Birmingham CC [2011] EWHC 1147 (Admin) para 183 Walker J considered that the consequences for disabled people of a move to critical only were potentially devastating. 245 SCIE, Dignity in care: Adults Services Practice Guide 09, 2006, p8, accessible at www.scie.org.uk/publications/practiceguides/practiceguide09/les/pg09.pdf. 246 [2003] EWHC 167 (Admin), (2003) 6 CCLR 194 at [88].
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3.208
3.209
3.210
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behaviour247 was a relevant factor in assessing the threshold at which action (or inaction) engaged Article 3. His judgment suggests that the threshold is not an excessively high one when the basic care and support needs of disabled people are being considered. In assessing whether Article 3 is engaged he considered it relevant to consider (amongst other things) the duration of the [lack of suitable care], its physical and mental effects . . . the sex, age and state of health of the victim.248 In R (Bernard) v Eneld LBC 249 Sullivan J accepted that not every breach of a community care obligation would result in a breach of the Convention. However, in view of the vulnerability of the client group, he considered that Article 8 obliged councils to take positive measures to enable them to enjoy, so far as possible, a normal private and family life. In the particular case he held that the councils failure to provide services had left the applicant housebound, conned to a shower chair for most of the day, [and] lacking privacy in the most undignied of circumstances. It had effectively isolated her and made her a burden, wholly dependent upon the rest of her family and in his opinion unquestionably violated Article 8. An ordinary interpretation of Mrs Bernards needs suggests that they are more likely to fall into the substantial band than the critical. If correct, this means that either the critical band descriptors are too severe, or, at the very least, they do not provide a failsafe protection of human rights. Under the English Prioritising Needs guidance one of the outcomes to be particularly considered is personal dignity and respect,250 this underlines the need for a human rights-based approach to determining an individuals need for support. However, the court, in R (Chavda) v Harrow LBC (see para 3.211 below), declined to consider the potential violation of the applicants human rights that would result from their future loss of eligibility for services on the ground that the argument was theoretical and premature, suggesting the claim would not crystallise until individuals had been reassessed against the revised criteria. This is a surprising decision given that the future loss of service provision was not, on the facts of this case, speculative, but relatively certain. The courts have been more robust in their application of the public sector equality duty in this context. While equality issues will not necessarily trump resource considerations, the duty in relation to disability, formerly in Disability Discrimination Act 1995 s49A, and now consolidated by Equality Act 2010 s149, to have due regard, amongst other things, to the need to promote equality of opportunity (see para 2.32 above for a detailed analysis), is one that is recognised as imposing signicant and onerous obligations on public bodies in the context of cuts to public
247 [2003] EWHC 167, (2003) 6 CCLR 194 at [89]. 248 Here citing from the judgment of the European Court of Human Rights in Price v UK (2001) 34 EHRR 1285 at [24]. 249 [2002] EWHC 2282 (Admin), (2002) 5 CCLR 577 at [32]. 250 Para 60.
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services.251 In R (Chavda and others) v Harrow LBC252 the council decided to raise the bar for eligibility to critical only. In doing so it considered a report which referred to potential conict with the DDA. Deputy High Court Judge Mackie, held that this was not adequate to discharge the disability equality duty:
The important reason why the laws of discrimination have moved from derision to acceptance to respect over the last three decades has been the recognition of the importance not only of respecting rights but also of doing so visibly and clearly by recording the fact. These considerations lead me to conclude that if the relevance of the important duties imposed by the Act had been adequately drawn to the attention of the decision-makers there would have been a written record of it.253
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In R (W) v Birmingham City Council254 (also concerning a decision to move to critical only) the defendant, faced with the need to make signicant savings in its overall expenditure, put up a robust defence to the legal challenge which it characterised as a micro challenge to a macro decision largely concerning petty bureaucracy, at quite a low level (para 3 of the judgment). The case proceeded on a number of agreed principles concerning the application of the section 49A duty, arising from the body of case law and the Code of Practice, including:

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Due regard requires analysis of the relevant material with the specic statutory considerations in mind General awareness of the duty does not amount to the necessary due regard, being a substantial rigorous and open-minded approach; In a case where the decision may affect large numbers of vulnerable people, many of whom fall within one or more of the protected groups, the due regard necessary is very high In particular, decision-makers need rigorous and accurate advice and analysis from ofcers, not Panglossian statements of what ofcers think members want to hear
The decision was made following a consultation exercise with two options; the rst to do nothing and the second, the councils preferred option, described as the new offer which included broad generalities as to the benets of personalisation as well as the move to meet critical needs only. The equality impact needs assessment had identifying as potential impacts increased stress for both carers and recipients of care, basic needs being likely to go unmet, increased depression and mental illness, and a risk of abuse increasing over time a feature being that withdrawing support for substantial needs may lead to critical needs developing. When rst produced the report was necessarily high level and generalised as regards impact, but suggested that more detailed and focussed
251 See agreed legal principles set out in R (W) v Birmingham City Council [2011] EWHC 1147 (Admin), (2011) 14 CCLR 516. 252 [2007] EWHC 3064 (Admin), (2008) 11 CCLR 187. 253 [2007] EWHC 3064 (Admin), (2008) 11 CCLR 187 at para 40. 254 [2011] EWHC 1147 (Admin), (2011) 14 CCLR 516.
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information would be available (para 157). By the time the decision was made no more detailed information was forthcoming. Accordingly, Walker J found it difcult to see how, in the circumstances of the present case, due regard could be paid to the matters identied in section 49A without some attempt at assessment of the practical impact on those whose needs in a particular respect fell into the substantial band but not into the critical band. (para 176). In particular,
The decision to consult on broad options required consideration of a subsidiary question whether to go beyond generalities in assessing the likely impact of the proposed course upon individuals with substantial needs. At the very least it seems to me that in order to pay due regard the Council when deciding to consult on broad options needed to consider whether its answer to the subsidiary question was consistent with its duty under section 49A. (para 178)
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The Birmingham judgment is a particularly strong example of the anxious scrutiny (see para 3.227 below) that courts will subject public law decisions when they believe that particularly severe consequences (in terms of fundamental human rights) will result. In this case, indeed, the court came close to arguing that a xed belief that a resource problem meant that services had to be cut no matter how severe: that there was no more room for manoeuvre (para 182) had the potential to be irrational/Wednesbury unreasonable (see para 3.226 below). As a matter of public law the over-rigid application of eligibility criteria, particularly where councils have elected to limit provision to those in the high bands, is likely to amount to an unlawful fettering of the authoritys discretion. For example, the statutory guidance requires attention to be given to how needs and risks might change over time and the likely outcome if help were not to be provided.255 This necessitates considering whether a current need, even though it may fall short of the eligibility bar, should nonetheless be met in order to prevent a worsening situation which will inevitably compromise the individuals independence and wellbeing. Similarly any analysis of the needs of a person whose condition is uctuating must consider whether, at times of peak need, the individual meets the eligibility criteria. In the second example the support plan (see chapter 4) would reect the variations in the intensity of support needed.
Family separation and locational need

3.216
The assessment and care planning process may result in the separation of couples and/or other family members. In evidence to the Joint Committee on Human Rights, Help the Aged referred to this situation in the following terms:
It is not uncommon for older couples to be separated against their will when the local authority says that it cannot provide sufcient care to one of them to enable them to continue living at home, and he or she must
255 Prioritising Needs guidance, para 57. See also UFSAMC, para 3.26.
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instead go into residential care . . . This agrant disregard for the Article 8 rights of older people indicates the lack of any systematic, conscious application of human rights in this area and underlines the need for a change in the culture of care planning.256
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In what circumstances is it lawful for a local authority to conclude a care plan that has or would have the effect of separating close family members? Before any such care plan can be proposed, an assessment must have been undertaken which considered (amongst other things) the persons important relationships. The various presenting needs would then have been graded against the four eligibility categories. Both the English and Welsh criteria describe as critical a situation where vital social support systems and relationships cannot or will not be sustained. An ordinary interpretation of the word vital in this context would encompass the preservation of a marriage, civil partnership or common law relationship. The same may also be true for other relationships with the factual context of each such case being crucial. Any assessment of these matters would have to ensure that full regard was had to the positive obligation under Article 8257 of the Convention to have respect for the private and family life of the person being assessed as well as those affected by any separation. The argument may have an added dimension in relation to married partners, since Article 12 most probably enshrines a right to cohabit.258 By way of example, if an elderly husband has a progressive condition that means it is no longer possible for him to be cared for in his home, it may be necessary for the local authority to secure a nursing home placement for him. This in itself would not amount to a violation of Article 8 in the sense that the authority is not actually interfering with the relationship (ie by forcibly removing the husband from the home). Whether the placement discharges the authoritys positive obligations will depend upon the proportionality of the response. Assuming that it is not feasible for him to remain at home with support, the assessment must address
256 Memorandum from Help the Aged contained in the appendices to the Sixth Report of the Joint Committee on Human Rights, The Case for a Human Rights Commission, 19 March 2003. Report together with Proceedings of the Committee HL 67-I; HC 489I. The widespread dread of the separation of man and wife was also given as one reason for the universal aversion of the Work House see C Booth (1894) The Aged Poor in England and Wales cited in P Thane Old Age in English History, OUP, 2000, p176. 257 Although there appear to be no directly relevant Strasbourg judgments, Kutzner v Germany (2002) 35 EHRR 35 at [76] stressed the positive duty to take measures to facilitate family reunication, and see also G v E and others [2010] EWHC 621 (Fam) (26 March 2010) where the right extended to a former foster carer now providing adult care and A local authority v MM and KM [2007] EWHC 2003 (Fam), (2008) 11 CCLR 119 where the Court required the authority to make arrangements to facilitate a long term relationship between the disabled person and her boyfriend observing (para 165) that the local authority cannot in this connection seek to avoid its positive obligations [under Article 8] by seeking to toll the bell of scarce resources. 258 See eg Re Jennifer Connor [2004] NICA 45, (2005) 8 CCLR 328 at [23].
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whether there is a need for the husband and wife to see each other regularly and in normal circumstances the conclusion would be that this is a critical need. In determining what is an acceptable distance between the wifes home and the care home placement, regard will have to be paid to her mobility and access to transport. If there is no suitable care home within easy reach of the wife, the local authority may have to make arrangements for the wifes transport. If, however, a suitable care home is available close by, but above the local authoritys normal fees ceiling, this home may have to be funded, without top up, since the authority is merely meeting the disabled persons assessed need (and not paying for something more than is required see para 7.111 below). Where there is real doubt as to whether someone can remain safely in their own home, even with a support package, there is a need for a sensitive balancing of their attachment to home and likelihood of deterioration as a result of an unwanted move on the one hand and, on the other, the risks that attach to staying put. This may arise, for example, where there is a risk of self-neglect or where an older spouse or partner providing essential care also has fragile health. A proportionate response involves the recognition that a reasonable degree of risk may be appropriate, as Munby J (as he then was) put it what good is it making someone safer if it merely makes them miserable?259 The importance of locational factors is not conned to assessments of married or cohabiting persons. The SAP guidance at Annex F (see above) specically lists location as a sub-domain that must be addressed in the assessment process and the local government ombudsman has strongly suggested that a failure to address such a need (if identied as an eligible need) would amount to maladministration.260 In R v Sutton LBC ex p Tucker261 the Rubella impaired applicants fundamental relationships were with her close family who lived in London. The local authority proposed a care home placement in Birmingham, but the family, clinicians and other experts considered that this would not be viable since she needed to be close to her family. In this case, location was therefore an assessed need and had to be met.
The written record of the assessment

3.222
There is no statutory requirement that assessments be recorded in writing, although in practice all social services authorities have standard assessment forms. These are generally completed in manuscript and then keyed into the authoritys IT system. The Prioritising Needs guidance is silent on the right of service users to a copy of their assessments, although it states that a decision not to provide any help following assessment or to withdraw help following a review should be supported by written reasons
259 Re MM (and adult) [2009] 1 FLR 443, para 120 and see also para 17.38 below. 260 Complaint no 05/C/13158 against North Yorkshire County Council, 24 July 2007. 261 (199798) 1 CCLR 251, QBD.
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given to the individual262 The 1991 practice guidance, however, states (at para 3.54) that a copy of the assessment of needs should normally be shared with the potential service user, any representative of that user and all other people who have agreed to provide a service. Except where no intervention is deemed necessary, this record will normally be combined with a written care plan. The SAP guidance263 is specic in this respect, stating:
All key decisions and issues relating to assessment, eligibility and service provision should be put in writing, or other appropriate formats, and a copy given to the older person. For older people who go on to receive services, these decisions and issues will be summarised in their care plan or statement of service delivery.
3.223
Where a service user has difculty obtaining a copy of his or her assessment and/or care plan, a formal request can be made under the Data Protection Act 1998 (see para 25.13 below).
Disputed service provision decisions

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The 1990 community care reforms made social services the gate keepers of the community care regime: ultimately it is the local authority that decides what a persons eligible needs are and what they are not. Judges are not expert in the practice of social work and so must defer to their professional expertise even when the decisions they reach appear harsh, provided they are arrived at lawfully. As has been noted above (see para 3.6 above), social workers are subjected to intense scrutiny primarily to ensure that their decisions do not place undue pressure on local authority budgets, notwithstanding the 1991 practice guidance that warns against trimming the assessment of need to t available provision.264 On one level this is entirely reasonable, and on another it can lead to assessments being service or budget driven in effect social workers being so constrained by organisational pressures that they do not assess individuals as needing services which are not available or which might exceed the available budget. The introduction of resource allocation schemes is likely to exacerbate this pressure (see chapter 4) Given that judicial review is a blunt legal instrument and that courts are seldom prepared to consider a service provision decision Wednesbury265 unreasonable266 (see para 26.196 below), the question arises as to how errant authorities can be called to account particularly if their
262 Prioritising Needs guidance, para 106, see also ; UFSAMC 2002 policy guidance, para 7.21. 263 SAP 2003 policy guidance annex E p19. 264 As cited in R v Islington LBC ex p Rixon (199798) 1 CCLR 119 at 129B per Sedley J, QBD. 265 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223, CA. 266 Although not invariably see eg R v Sutton LBC ex p Tucker (199798) 1 CCLR 251 at 275J, QBD.
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complaints investigations are insufciently robust or well informed to address such problems. The evidence suggests that both the courts and ombudsmen adopt a variety of public law mechanisms to nd fault with the decision-making process when they apprehend an improbably austere service provision decision. In general, the harsher the apparent service provision decision, the greater the courts/ombudsmens insistence on due process particularly on compliance with policy and practice guidance. This approach is sometimes referred to as the anxious scrutiny test267 (see para 26.197 below) the more a decision engages fundamental rights, the more anxiously will the courts scrutinise the procedure by which it was reached. By way of example, R v Birmingham CC ex p Killigrew268 concerned an applicant with severe disabilities whose condition (multiple sclerosis) was deteriorating. Her husband and main carer was also a disabled person. At the end of 1997 she was assessed as requiring 12 hours continuous care each day seven days a week. The council undertook a manual handling assessment in 1998 and decided that she required two care assistants to move her, rather than the one that had previously done this. A community care reassessment then occurred, as a result of which the council proposed to reduce the day care from 12 to 3.5 hours. Hooper J held that no such reduction could occur without compliance with the 1990 policy guidance which in his view required (1) detailed reasons as to why 12 hours were no longer required and (2) up-to-date medical evidence which the local authority had failed to obtain (1990 policy guidance, paras 3.47 onwards). The same approach can be identied in cases concerning disabled children (see chapter 23) Where a local authority seeks to defend what appears to be a harsh or inequitable decision, the reasons it gives for the decision, as well as the process, will be scrutinised. In R (Goldsmith) v Wandsworth LBC269 the court found it almost impossible to understand who in the authority had made the various decisions in issue or how they had been reached. It concluded that virtually every aspect of the councils decision making process was awed including its failure to share information with the applicants daughter, its denial of her right to attend a hearing and make submissions, its failure to keep minutes at that hearing and its mistaken belief as to the evidential value of a medical opinion.
Reassessment and reviews

3.230
Councils have a general public law duty to ensure that the community care needs of service users are kept under review. As the local government ombudsman has observed:
267 See eg R v Ministry of Defence ex p Smith [1996] QB 517 at 554. 268 (2000) 3 CCLR 109: see also, eg, R v Lambeth LBC ex p K (2000) 3 CCLR 141 where the court quashed a budget driven harsh service provision decision on the basis that the council had not followed the 1990 policy guidance and had confused needs and services. 269 [2004] EWCA Civ 1170, (2004) 7 CCLR 472.
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As an individuals need for community care services will vary over time, the duties placed on councils are continuous. Councils should therefore provide for the review of assessments and service delivery decisions.270
3.231
This obligation is underpinned by the Prioritising Needs guidance271 which requires that:
The frequency of reviews should be proportionate to the circumstances of the individual but there should be an initial review within three months of help rst being provided or major changes made to current support plans. Thereafter, reviews should be scheduled at least annually or more often as is necessary. Councils should also consider conducting reviews when requested to do so by the service user, their carer or service provider.
3.232
Reviews should:272

3.233
Establish whether the outcomes identied in the support plan are being met through current arrangements; Consider whether the needs and circumstances of the service user and/or their carer(s) have changed; Support people to review their personal goals and consider what changes if any should be made to the support plan to better facilitate the achievement of agreed outcomes; Ensure that the risk assessment recorded in the care plan is up to date and identify any further action that needs to be taken to address issues relating to risk; Demonstrate a partnership approach across agencies and with the service user as well as their family and friends if they choose; Support people to strengthen their informal support networks; Support people to increase their productive role in their community; and Help determine the service users continued eligibility for support.
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The Prioritising Needs guidance requires local authorities to be exible in how they carry out reviews, depending on the views of the individual, who must be consulted. However, the implication is that reviews should be face to face and should generally involve all relevant parties: for instance, carers; the service users advocate; the purchasers and the providers of the care services. The outcome of reviews should be recorded in writing and shared with the service user.273 The local government ombudsman has stressed the importance of reviews being proactive and frequent and that it will be maladministration to stick rigidly to a predetermined review cycle when changed circumstances demand an earlier review.274 She has also stressed the need
270 Complaint no 02/B/10226 against Cambridgeshire CC, July 6 2004. 271 Prioritising Needs guidance, para 144; UFSAMC 2002 policy guidance, paras 2.54 onwards. 272 Prioritising Needs guidance, para 142; see also UFSAMC 2002 policy guidance, paras 2.442.51. 273 Prioritising Needs guidance, paras 142 and 145. 274 Complaint no 05/A/00880 against Essex CC, 16 January 2006, para 56 and see also complaint no 02/B/10226 against Cambridgeshire CC, 6 July 2004.
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for councils to devote adequate resources to this function to ensure that they adequately monitor contract performance.275 Where a local authority decides to reduce signicantly the level of services provided as a result of a reassessment, it must provide rational and cogent reasons for this alteration276 and before making any reduction it must provide the service user with an opportunity for the decision to be reviewed.277 The ombudsman has commented that a social services justication for the withdrawal of services namely the need to prioritise suggested that a comparative judgment was being made rather than a consideration of whether the individuals need had changed.278 A failure to inform carers by letter of a material change to a service users care plan will generally constitute maladministration.279 Where a local authority settles a complaint by agreeing to reassess, the reassessment should do more than go through the motions. In Banks v Secretary of State for the Environment280 Sullivan J gave guidance on what such a review should entail, advising that one of the functions of a review procedure must be to give some degree of assurance that there will be a genuine reconsideration: and that in order to dispel user suspicion, it should as far as possible involve review by another (and preferably more senior) ofcial who has not been connected with the decision under review or given an opportunity to comment upon it.
Law Commission proposals

3.237
The Law Commission proposals for adult social care legislation281 do not include any signicant changes to the assessment duty as such. They do include proposals that:
Assessments must focus on outcomes (goals identied by the individual) as well as needs There should be a duty on the Secretary of State for Health and the Welsh Assembly Ministers to make regulations prescribing the assessment process, including the circumstances in which a specialist assessment is required and the details of the eligibility criteria. Regulations may also provide for a number of other aspects of assessments including timescales, who can carry out assessments, considerations
275 Complaint no 03/C/17141 against Blackpool BC, 23 February 2006 and see also complaint no 01/B/00305 against Cambridgeshire CC, 9 July 2002 complaint no 05/ A/00880 against Essex CC, 16 January 2006 and complaint no 05/C/6420 against Shefeld City Council, 20 February 2007. 276 R (LB) v Newham LBC [2004] EWHC 2503. 277 Complaint nos 02/C/14235, 02/C/15396, 02/C/15397 and 02/C/15503 against Derbyshire CC, 24 June 2004. 278 Complaint nos 02/C/14235, 02/C/15396, 02/C/15397 and 02/C/15503 against Derbyshire CC, 24 June 2004 reported at page 99 of Local Government Ombudsman Digest of Cases 2004/05. 279 Complaint no 02/B/03622 against Harrow LBC, 22 June 2004. 280 [2004] EWHC 416 (Admin): a non-community care case. 281 Law Commission (2011) Adult Social Care, Law Com No 326 HC 941.
to which the assessment should have regard and may specify a form of self-assessment. There should be an express requirement to apply the eligibility criteria with an enforceable duty to meet eligible needs The proposed Code of Practice should provide guidance on how selfassessment should be integrated into the assessment process and on delegation and the required degree os local authority oversight.

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CHAPTER 3

Community care assessments

3.1 3.2 3.7 3.11 3.12

3.23 3.27 3.32

Community care and the law / chapter 3

3.136 3.142 3.149 3.168 3.171 3.173

Community care assessments

3.204 3.222 3.222 3.230 3.237

Community care and the law / chapter 3

The theoretical framework

Community care assessments

Community care and the law / chapter 3

Community care assessments

The duty to assess the legislative and administrative framework

The statutory framework

Disabled Persons (Services, Consultation and Representation) Act 1986 s4

Section 4 of the 1986 Act provides:

Community care assessments

In addition to the section 47(1) assessment obligation, section 47(2) states:

Community care assessments

Policy and practice guidance

Community care and the law / chapter 3

Community care assessments

Specic user group assessment guidance

Older people specic guidance

Community care and the law / chapter 3

Mental health service user specic guidance

Community care assessments

This guidance is considered at paras 20.3 and 20.7 below.

Learning disabled peoples specic guidance

This guidance is considered at para 18.5 below.

Deafblind children and adults specic guidance

Disabled childrens specic guidance

Community care and the law / chapter 3

Disabled parents specic guidance

Carers specic guidance

Community care assessments

Guidance and section 47(4)

Delegation of duty to assess

Community care and the law / chapter 3

Community care assessments

Timescale for assessments

Community care and the law / chapter 3

Reform a common assessment framework

Community care assessments

The duty to assess: when does it arise?

Community care and the law / chapter 3

Individuals who may be in need of community care services

Community care assessments

What of a future need for services?

No need to request an assessment

Community care assessments

Entitlement to services is not relevant

Community care and the law / chapter 3

The duty to assess arises even when services are discretionary

Financial circumstances are not relevant

The nature of an assessment

Community care assessments

Community care and the law / chapter 3