The gaps, inconsistencies and question marks in the approach to eligibility under the Care Act

In her second analysis of the Care Act's draft regulations and guidance, Belinda Schwehr assesses their approach to the concept of eligibility

By Belinda Schwehr, Care and Health Law

Under the Care Act 2014, the whole concept of eligibility criteria as a means for rationing state-funded care and support is being elevated into the only threshold mechanism at all, without any statutory underlying tests for particular types of clients or services.

Even the types of care under the Care Act that can count in section 8 (how to meet needs) are illustrative only, and not a set of parameters or hard outer boundary to the notion of what social care or support is.

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The new threshold will apply nationally, although councils are allowed to have criteria for particular types of service or need that are more generous than the national minimum. It would be very surprising if they did that, because they are all free to provide extra discretionary preventive services, even if someone is not formally eligible, anyway. But they will all have a different interpretation of the indicators, one can rest assured, so there will be local differences and, thus, still a postcode lottery.

Principle of necessity missing from guidance

The current law is that one’s approach to necessity – a need that is so needy that it must be met – should not turn on the state of the council’s budget on a given day, so as not to affect a particular individual. But this principle does not appear anywhere in the draft statutory guidance, as yet.

It’s an uncontroversial piece of social care law, currently, that a lack of money in social service coffers is legally irrelevant to the doing of the duty to meet eligible need appropriately, once it has been assessed. It is an absolute duty for a council – corporately, not just in respect of the social services department –  to meet such need until the person has been legally reassessed and either found ineligible or the support plan legally altered. They are allowed to take money problems into account in relation to the question of what is appropriate by way of a response to eligible need, but are obliged to spend their reserves down to the statutory minimum and cut all discretionary services before they can legally say that they should not have to meet an assessed eligible need.

In the new guidance, this theme is not explicitly mentioned, either. But it is an unavoidable aspect of public law principles and the difference between duties and discretions, so anyone wanting to challenge these principles will have to risk judicial review and re-setting the Gloucestershire precedent (in the cases of R v Gloucestershire CC ex p RADAR (1997) and R v Gloucestershire ex p Barry (1997)) all over again!

Does eligibility still turn on unmet need?

The local decision, under the current law, turns on whether the needs, once identified, ‘necessitate’ arrangements by the council, (or ‘call for’ such arrangements, in the language of section 47 of the NHS and Community Care Act 1990) in order that they be met. This is regardless of resources, because they are such needy needs that it would not be rational, taking one’s local politics and budget into account, to ignore them. It will be seen at once that under that formulation, a finding of eligibility triggers the duty to fund, because in order to be eligible, a need has to be a need which is not being met by anything or anyone else. It’s not ‘necessary’ to meet it, otherwise.

In future, eligibility – as a status – will turn on the type of ‘need’ identified, and the consequential significant impact arising on a person’s wellbeing, not on whether the need is currently met or unmet.

In other words, this question of impact is supposed to be considered by the care manager without regard to the prospective service user’s situation at home, in relation to what a carer might be doing, or would be willing or able to do if they were given funding to make the impact on them of caring more manageable. That aspect of the service user’s entitlement to funding or a service is only to be taken account of at the care planning stage, apparently, before a budget is finalised. That’s quite a hard ask for a care manager, used to assessing unmet risks, not the total risk, including the met needs.

Inconsistency over carer-blind decision-making 

The guidance is not even consistent throughout on the need to make a carer-blind decision, unfortunately, and this stems from the Act and regulations, not just the guidance.

For example, the guidance says says this about the process of assessment: “As part of this process, the local authority should also take into account the person’s own capabilities, and the potential for improving their skills, as well as the role of any support from family, friends or others that could help them to achieve what they wish for from day-to-day life.”

It’s even harder for a care planner if they’ve got to juggle the carer’s and user’s needs within a nominal indicative allocation to cover the whole ‘case’. There’s nothing in the law or regulations about working to an indicative budget, and the guidance is clear that resource allocation systems must be transparent, and that the amount must be sufficient, when finalised, to meet the needs and reasonable preferences of the individual.

But whoever has written that part of the guidance has chosen to perpetuate the position that it is always a ‘good thing’ to know what one’s budget is, roughly, before it is finalised, as if that was part of the law! There is no discussion of whether the approach that is currently popular – weighing up the cost of a care home against the cost of care at home, but in future maybe aggregating the carer’s and service user’s needs before comparing the care home cost – could ever be lawful or not.

The practice of delegating carers’ assessments via contract to people who are separate from care planners would need to be reconsidered too, but this is not mentioned.

The focus on met need will make the assessment process more like the proper approach to continuing healthcare eligibility, which has always (supposedly) ignored the question of whether the need was met or unmet, because the question of eligibility turned on quantity and quality of health and social care needs.

Whereas CHC eligibility arises from a quality and quantity calculation via the decision support tool process, though, the question of eligible status for social services money will turn on a test of ‘significant consequential impact for well-being’. This will be applied after the full deficits have been identified, in terms of quality and quantity, and then working out how much less the council actually needs to pay for, or arrange, once the carer’s input has been accounted for.

Relevance of preventive services to eligibility

One of the biggest quandaries in the new guidance is to what extent preventive services, to which a person could be pointed to help themselves by well-informed staff, should be taken account of for the purposes of eligibility.

If a person has only a severe but narrow type of presenting need, they can perhaps be encouraged toward reablement and the pause button on their assessment can be pressed. It might just work, and mean that they don’t have eligible needs at all, after a short while. That makes perfect sense, and because reablement is compulsorily free to the service user for six weeks, one can see it working well.

However, if the preventive service is available in the community, and the person is pointed towards it, but says ‘no thanks’ for some reason, what should the consequence be? The guidance is clear that they do still have to be assessed in the normal way. What the guidance does not say, is what the significance should be to the council’s assessor of the person’s refusal to help themselves. Is it, for instance, relevant to eligibility, if we conclude that the significance of the impact on wellbeing of a particular need is lessened because the person has ‘chosen’ not to help themselves reduce that need?

One can see the logic of that, in an era of autonomy, choice and control. But the need would still exist, and still be unmet; and the person might have had a really good reason for saying no, such as an evidence-based concern about the suitability of the service they are being pointed to.

Here’s why it matters: the charge to the client of the service, via a council-funded package based on eligibility, could be less than it would be were they to access the same service independently from the provider. So it might make sense for the person to say ‘no’ to it as a preventive service, or at all, unless it is seen as a response to eligible unmet need, funded by the council; but that would be perverse of the new system.

The guidance needs to be clarified, and it needs to be clear that councils must conscientiously engage with a person’s reasons, before treating them as determined not to help themselves, and thus not minding about an unmet need.

Rights to the continuation of the care package until reassessment

The other main puzzle in the draft guidance is the extent to which a person’s right to a service continues, unless or until they are reassessed, as is the current law. At first glance the care and support plan seems sacrosanct – or at least the funding behind it does – until reassessment.

“Where the local authority is satisfied that a revision is necessary, it must work through the assessment and care planning processes as detailed in sections 9-12 and 25 of the Act to the extent that it thinks appropriate.”

However, elsewhere, the chapter on review in the draft guidance distinguishes the notion of reviewing the plan, from doing a reassessment. That makes sense where a person clearly remains eligible, and doesn’t want to be reassessed, but simply wants a change in their plan. But changes in the plan are referred to as possible, without them necessarily arising from a reassessment. And the critical question is does that mean changes to the way in which the money is spent, or changes to the means by which the needs are to be met, at the behest of the council purchaser, when it sees a chance to substitute a cheaper provider?

Whatever the state of the guidance on whether there should even be a formal reassessment, there is, however, at least one special message for costs brokers and councils in the guidance that should be imprinted on the hearts and minds of providers and advocates:

“Periodic reviews, and reviews in general, must not be used to arbitrarily reduce a care and support package. Such behaviour would be unlawful under the Act, as the personal budget must always be an amount appropriate to meet the person’s needs. Any reduction to a personal budget should be the result of a change in need or circumstance.”

Consequential significant impact on the sector’s training needs?

In my first piece on the draft regulations and guidance, I suggested that more legal literacy was required within the sector, for confident, professional, value-based social work, and I believe that arrangements for keeping one’s staff up to date on legal developments will be a common focus among regulators and performance managers’ concerns.

In the next piece I shall look at what the guidance has to say about choice, reasonable preferences, sufficiency of the personal budget, and top-ups.

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