These questions have been raised with Belinda through her legal training sessions and webinars on the Care Act.
Needs and eligibility
Are a person’s ‘needs for care and support’ the same thing as the inabilities that are called outcomes in the eligibility regulations?
No, because the needs have to cause inability to achieve, in relation to the outcomes (or domains, as I think they should be called) set out in the eligibility regulations. So the needs are the impediments generated, or the symptoms or consequences of the person’s conditions, illness, impairment or injury, and the needs could be eligible, if they prevent an ability, by oneself and without significant pain, distress etc, to achieve the outcomes considered to be the bare minimum for a tolerable life.
If an adult with needs for care and support just fills out the ‘supported self-assessment’ form they’ve been given, and doesn’t really understand how it works and struggles with getting the form done at all because of the effects of their disability, can the local authority just consider their eligibility on the basis of the contents of that form alone, and decide they aren’t eligible?
No, the council should not have given them a self-assessment form in the first place if the person’s capacity to participate in what the statutory guidance calls ‘self-assessment’ was in doubt. A decision on whether the person was entitled to advocacy should have been made before the decision whether or not to give the person an assessment form (for anything other than preparation purposes), for a start. A face to face assessment should have been organised if there was some concern about cognitive impairment (see the guidance).
But in any event, if the form comes back looking incomplete or internally inconsistent, or not holding together and making sense, the council is not allowed to take a user-led document as the basis for its statutory assessment without assuring itself of the accuracy of the contents. To do this, the authority would have to go and talk to other people or check the contents out. Regardless of how the form looks, the council is the decision maker for eligibility, not the aspiring client or a computer, and the eligibility decision must be based on a professional decision in line with the eligibility regulations, not merely an assertion about the impact of the person’s needs. Reasons have to be given, whether the person is ineligible or not.
Prevention and eligibility
What if a person with obvious significant needs has been signposted to preventive or universal services, and accessed them, and is ‘feeling a bit better’ than they first did when they presented for first contact?
If their needs have been managed for good following prevention, so that they are not unable to achieve outcomes in the eligibility regulations any longer, or they appear to be minded to cope with the remaining impact to their wellbeing, they will not be eligible. If their needs have only been managed temporarily – ie the need will come back again within a very short time if the entitlement to the prevention input is time limited – they will still be eligible.
What if they have said ‘no thanks’ to preventive services?
They are still entitled to their eligibility decision because they still have an appearance of needs for care and support. But they might be told that the impact on them can’t be seen as consequential/significant, because their chosen stance on not helping themselves made that clear. If, however, there was an obviously good reason for their saying ‘that preventive service is not going to work for me’, in the first place, the council can’t hold that against them.
Disagreements over eligibility
Does there have to be a space on the assessment form where someone can disagree on the question of inability or impact?
Not legally, but it would be daft of a council not to provide one because conscientious use of such a space will prove that the person has been involved and engaged, for a start. It will also show a willingness on the part of the council to be open to evidence, which makes challenging the decision on the basis that the staff had closed minds, harder. And the bottom line is that it will save massive egg on face to have got the person’s reasons for not agreeing, out of them, before any final decision is made. At least some of the time, the person – being the best person for knowing themselves – will be proved correct in their opinion.
Inability to achieve outcomes
What should a professional do, if a person presents with only one area of inability (the eligibility regulations require there to be two areas of inability), but significant impact seemingly arising from it?
If they find the person to be ineligible, as per the rules, they must give written reasons and refer them to alternative services or sources of prevention and reduction. A good idea in practice might be that the assessor should have another go, in case there are nagging doubts about the person’s mental capacity, in the professional’s mind, relating to lack of insight or determinedly self-rationing tendencies.
But the person might just be even clearer, second time around – in which case, a professional should ask themselves whether the person might not have considered themselves unable to achieve a second outcome, because they didn’t fully understand the regulations. These count a person as unable to achieve an outcome even if they were managing, but only just, or managing only because of the help they’ve been getting. A person should have had a leaflet or something before that point, explaining that it’s the full need the council is assessing, not just whether the person is coping. In all such cases, the assessor should remember that there is power to meet need, even if there is not a duty. So there should never be any unthinking application of the ‘two or more’ requirement in the eligibility regulations.
I’ve heard that an authority can say: “Yes, you have got needs across several outcomes and they are having an impact on your wellbeing but the impact isn’t significant, as far as we are concerned, so you aren’t eligible.” Is that legal? Who gets to judge this, and how do we know where this threshold is, and what can a person do about it, if the disagreement continues?
The council gets to decide, but subject to scrutiny and supervision against longstanding principles, by the Administrative Court. The principles councils must follow to make lawful decisions involve being transparent, knowing the law, and interpreting it in a well-informed way, giving reasons, making decisions on the basis of an evidence basis and taking into account all relevant considerations (including what the Care Act and its guidance says about well-being, the cumulative effect of the person’s inability to achieve outcomes, absence of hierarchy among the outcomes in the eligibility regulations, and the views and feelings of the client) and leaving out irrelevant considerations.
My well-informed prediction would be that the courts would say that councils’ budgetary difficulties are not relevant to the existence of needs or to eligibility on a particular day. The meaning of significant impact cannot change from one quarter to the next. The council’s response to unmet need can be affected by budget, within tolerable, sane parameters, but not the question of impact – it is a professional judgement.
Having said that, the culture in which public sector staff have to operate may fatally obscure that legal truth, in practice. Most councils are working to a system whereby the frontline staff are entitled to make pure eligibility decisions, for the council, and their views are only loosely line managed by middle management, not put through a panel.
They’ve seen the clients, and situation on the ground, after all. If they are properly trained, their evidence-based judgement and reasoning would be very, very hard to challenge, legally. But if a panel of senior staff is actually making eligibility decisions and overriding frontline staff, it must be the panel’s reasons that are given in the written record that section 13 of the Care Act entitles the person to receive, and these reasons would have to be very powerful indeed to override the credibility of the frontline professional judgement to the opposite effect.
The Savva case established that principle and nothing in the Care Act is likely to have changed that. A person can ask to make representations to the panel, and this ought to be allowed in some shape or form, albeit not necessarily in person. Considering written submissions may be the only way the panel can show that their view should be respected over and above the frontline member of staff’s. How much better would it be to just have a space on the form for the client, carer or advocate or other consultee’s view?
If a person doesn’t like a professional’s judgement, they need to find out what the professional’s reasons were, in the first place, and then address those in a coherent way. They can use the complaints system, or contact the council’s monitoring officer, if the disagreement is based on the person’s view that the professional hasn’t acted lawfully in line with the principles within public law. A good council will change its approach and make a better decision second time around – not necessarily a different one, but one that is at least defensible, in terms of public law principles.
That’s all a formal legal challenge would get the person anyway, apart from a lot of expense and aggravation. It’s not an appeal, remember, it’s a kind of arm’s length ‘special forces’ system throwing out indefensible approaches – but only if they are really demonstrably ‘wrong-headed’ – so it is in everyone’s interests to act lawfully, first time around.
Belinda Schwehr, Care and Health Law
Tel: 01252 725890