Reassessing, withdrawing services and waiting

WAITING TIMES FOR ASSESSMENT

Alternative to denying people assessment in the first place, local authorities sometimes make them wait a long time. Inevitably the question arises as to the point at which the tardy carrying out of a duty amounts to not carrying it out at all and to unlawfulness. Absent timescales set out in legislation, and both law courts and local ombudsmen state that local authorities must carry out their duties within a reasonable time and without undue delay. What is reasonable will depend on all the circumstances of the case; although the courts might anyway be reluctant to intervene if a dispute about delay involves a consideration of facts only, rather than points of law. The reasonableness approach has both advantages and disadvantages; it sensibly permits flexibility in reacting to individual needs, but denies all concerned an easy, if crude, rule of thumb.

7.1 REVIEW AND REASSESSMENT

From time to time service users will need to be reassessed. The trigger might be, for example, (a) a review date becoming due; (b) needs and circumstances anyway changing (perhaps before a scheduled review date); (c) a change in the local authority’s threshold of eligibility.

Failing to reassess on change of need. A complaint was made to the local ombudsman concerning a man with learning disabilities who had in 1991 been placed in a care home jointly by social services and the NHS. In 1998, he was diagnosed as suffering from high functioning autism. However, he was not reassessed by the local authority until February 2003 and not provided with additional services until June of that year. The local ombudsman found maladministration (Cambridgeshire CC 2004).

In the legislation, there is no explicit duty of review or reassessment. However, reassessment is in effect covered by s.47 of the NHS and Community Care Act 1990; it is assessment all over again against potential, changed need.

The importance of review is stressed by guidance on ‘fair access to care’ (FACS) and on the ‘single assessment process’ for older people. The latter stipulates that reviews should be undertaken on a routine basis, within three months of services first being provided or of major changes to services, and after that annually or more frequently if necessary. It adds that ‘one-off pieces’ of community equipment do not need review after initial confirmation of suitability and safety, although major items should be reviewed for suitability and safety annually, or more frequently if recommended by manufacturers (LAC(2002)1, annex E). The FACS guidance states that:

•(reviews) reviews should consider determine services achieved outcomes, reassess needs, determine continuing eligibility, confirm or amend or close current care plan

•(three monthly and yearly reviews) there should be three-monthly reviews where assistance first provided or major change to services, thereafter at least annually

•(face to face contact) reviews may be undertaken without face-to-face contact, but only exceptionally

•(no delegation to service providers) reviews must not be delegated to providers

•(equipment) one-off pieces of equipment do not need review after initial confirmation of suitability – major items should be reviewed as to their suitability and safety on annual basis

•(withdrawal and worsening needs) non-eligibility decision only if the council is satisfied that needs will not significantly worsen or increase in near future for the lack of help, and thereby compromise independence including employment, training, education and parenting responsibilities

•(withdrawal and exacerbation of need) non-eligibility: withdrawal of services should not take place if the consequence will be to exacerbate needs and thus make the person eligible again in the foreseeable future

•(carers) councils should not make assumptions about the capacity of family members or close friends to offer support

•(safety of withdrawing services) it may not be practicable or safe to withdraw services, even though needs and associated risks may initially appear to fall outside criteria – also any commitments given at the outset about longevity of service provision given should be checked before withdrawal

•(reasons in writing) refusal or withdrawal of service should be put in writing in terms of the decision and reasons (LAC(2002)13, paras 60-68).

7.2 CONDITIONS FOR LAWFUL WITHDRAWAL OR REDUCTION OF SERVICES

Services can in some circumstances be lawfully changed, reduced or withdrawn by the local authority. First, there must be an individual reassessment (R v Gloucestershire CC, ex p Mahfood). Department of Health guidance on fair access to care makes this point, too (LAC(2002)13, para 58). Then one of the following conditions must be met:

•the authority’s eligibility criteria have changed such that the person’s needs no longer command the same level of service provision

•the assessed needs have changed

•the needs can be met in a different way

•the person no longer wishes to receive the same services

•there is unreasonable behaviour on the part of the service user.

If such conditions are absent, then generally speaking the local authority’s decision runs the risk of being unlawful. This follows from the fact that assessed eligible need must generally be met (R v Gloucestershire CC, ex p Barry: see 6.9).

7.2.1 REASSESSMENT

The courts have stated that a person’s services cannot be reduced, withdrawn or significantly altered unless an individual reassessment has first taken place:

Reassessing on individual basis. When a local authority contemplated withdrawing or reducing home help services from up to 1500 people, the court ruled that it had to reassess each of them on an individual basis. It could not simply take a blanket decision (R v Gloucestershire CC, ex p Mahfood).

Changing services. When 13 service users were reassessed, six were allocated a cheaper service provider, seven kept the original, more expensive, one. This balanced outcome reassured the court that individual reassessments had taken place, and that decisions had not been wholly determined by resources. The court accepted that the local authority could take account of resources in respect of the changes, so long as it never forgot that the needs of service users were more important than money (R v Essex CC, ex p Bucke).

Furthermore, because of the vulnerable nature of community care service users, a local authority must make reasonable efforts to effect that reassessment:

Making reasonable efforts to reassess. A local authority was reviewing and reassessing people’s needs for services they were currently receiving. It wrote to service users offering a reassessment if they replied in the affirmative. If they did not, the implication was that they might anyway have their service reduced or withdrawn. The court found that this approach was not adequate in the context of community care services and vulnerable people, where the duty of assessment did not rely on a request. This contrasted with other contexts, where people might be better able to look after their own interests. Although effective reassessment could not be undertaken without a degree of cooperation from the service user, nevertheless such a letter would not be enough (R v Gloucestershire CC, ex p RADAR).

Central government practice guidance originally seemed to suggest that review would be face to face, since it stated that it might be appropriate to conduct the core part of it in the service user’s own home (SSI/SWSG 1991, para 7.5). More recent Department of Health policy guidance is more direct, stating that other than in exceptional circumstances, reviews should be face to face, conducted by a competent professional and should not be delegated to the care provider (LAC(2002)13, paras 61-62).

7.2.2 CHANGE IN THRESHOLD OF ELIGIBILITY

If a local authority’s threshold of eligibility has changed, it might be the case that certain service users might no longer be entitled to (the same level of) services, even though their own needs remain unchanged. In such circumstances, the courts have held that it is lawful to withdraw or reduce services following individual reassessments (R v Gloucestershire CC, ex p Barry).

However, Department of Health guidance points out that caution must nevertheless be exercised, for example, where people may have developed such a dependency on the service that they would not cope without it (LAC(2002)13, para 66). Put another way, such a dependency would, in individual cases, have to be assessed as part of a person’s eligible need. This might require a period of adequate notice, as the local ombudsman thought in the following case:

Gradual withdrawal/change. A local authority had been funding psychotherapy sessions for a woman, following the ending of her placement in a therapeutic community home. With no proper assessment or review, the local authority suddenly withdrew the service without adequate notice. The local ombudsman found maladministration; this warranted the local authority paying to the woman the money she owed on some of the sessions she had continued to have, as well as the travel expenses she had occurred and £1250 for distress caused (Brent LBC 1994).

The courts have stated their reluctance in principle to interfere with the strictness of eligibility criteria under legislation such as the CSDPA 1970. Thus, on the withdrawal of services following reassessment, they may hesitate to interfere, even if they feel the revised package of care has been pared to the bone.

Reassessment of man with multiple sclerosis. A man with multiple sclerosis was reassessed, with the consequence that a package of care, that had effectively constituted 24-hour-a-day assistance, was reduced to five hours a day.

Likewise, in another legal case, the local authority had persistently attempted to reduce and minimise services for a person who had Still’s disease (a form of rheumatoid arthritis characterised by high spiking fevers), suffered serious flare-ups and was almost totally blind. The judge remarked that the package was not generous, but then legally it did not have to be. The package was not perverse, but the judge would not have been surprised if a reassessment revealed the need for more hours of care (R(Heffernan) v Sheffield CC).

7.2.3 CHANGE IN NEED

If a person’s needs have changed then clearly a change in service might be justified, but any such decision should be based on a proper reassessment, as the courts have emphatically stated:

Reassessment and reduction of service. Following a manual handling assessment of a woman with multiple sclerosis,a local authority provided two personal assistants for six hours instead of one for 12 hours. The local authority could not show (a) that this reduction equated to a change in the woman’s assessed, eligible needs; or (b) that the needs were to be met in a different way (there was apparently no question of the eligibility threshold having changed).

In particular, the judge found no ‘careful assessment’ or proper analysis of the whole situation, if the time allotted were to be halved. He noted that it was ‘important that the reduction to six hours’ care was not driven by the need to have two carers to carry out the task’. The reduction could only be justified if there was no continuing need for 12 hours of care.

The judge held the decision to be unlawful and ordered that the local authority carry out its assessment again. In addition, he found a separate ground of unlawfulness; the assessor knew she ought to discuss matters with the woman’s general practitioner, yet failed to do so. This was because the woman had just changed GP and the new GP did not yet feel able to offer any information. This was not good enough; it meant up-to-date medical information was not taken into account, when it should have been (R v Birmingham CC, ex p Killigrew).

Alternatively, there might simply be no formal assessment at all, in which case the courts will simply hold the local authority’s decision to be unlawful:

Change of residential placement. A 35-year-old woman with autism had been placed by her local authority some years before in a further education placement in Newcastle. Subsequently, she moved out of the hall of residence to a residential address operated by the managers of the college. Seven years from the date of the original placement, the local authority sought to move the woman back to Leicestershire into an alternative residential placement. A letter to this effect was sent to the woman’s mother, stating that this move would be for her daughter’s long-term health, security and happiness.

Without a change of need, or of eligibility criteria or some other relevant circumstance, decisions run the risk of being unlawful:

Reassessment and withdrawal of night-sitting service. An 86-year-old woman was reassessed. She suffered from severe arthritis and had poor mobility and a very weak bladder, which meant that she needed assistance from chair or bed to commode or toilet throughout the day and night. This resulted in an altered care plan and the loss of the night-sitting service which had previously been provided. The night-sitting service under the original care plan involved a person in attendance between 10 pm and 7 am to help with undressing, ensure that she was properly provided for and able to visit the toilet frequently during the night. The revised care plan involved only a person in attendance between 10 pm and 10.30 pm, to undress the woman, make her a drink and see that she was comfortable for the night. An interim injunction was sought – and obtained – to prevent this, pending a full judicial hearing.

The judge noted that nothing in the new care plan suggested a change either in the woman’s needs or in any other relevant circumstances. This strongly suggested that the apparent decision, that she no longer needed night care, was based on no evidence whatsoever. This would make it irrational or unreasonable. He added that she was indisputably very infirm; and attempts by her to go to the toilet would result in physical problems, danger and possible extreme physical discomfort. To expose her to that sort of indignity and risk would, in the court’s judgment, have been inhumane (R v Staffordshire CC, ex p Farley).

7.2.4 DIFFERENT WAY OF MEETING NEED

If a local authority can genuinely meet a person’s need in another way, then a withdrawal or change of service may be lawful. Nevertheless, local authorities have to be able to demonstrate this; in neither of the two following examples could they do so:

Emergency need. When a local authority reassessed a woman with multiple sclerosis, it substantially reduced the daytime assistance she received. One of the purposes of this assistance had been to ensure that a carer was on hand in case an emergency arose. The new assessment and care plan did not deal with the issue of how an emergency need, in case of epileptic fit, would be met. This was one of the grounds on which the reassessment was held by the judge to be unlawful (R v Birmingham CC, ex p Killigrew).

Similarly, the local ombudsman will consider whether a reliable alternative exists:

Furthermore, the general condition of reassessment – including participation of, and consultation with, the service user – must still be adhered to:

Change in visiting arrangements. A woman with severe learning disabilities had been placed in the care of a foster family. Arrangements for fortnightly Saturday visits home by the sister were agreed. These were subsequently being cancelled at short notice. The local authority proposed a change of day (Wednesday), and informed the mother who disagreed. The council went ahead and confirmed the change. Changing the day without consultation, and confirming the change against the family’s wishes, was held by the local ombudsman to be maladministration (Manchester 1996).

7.2.5 EXPLICIT REFUSAL BY SERVICE USER

In the case of adults with the capacity to take the relevant decision, community care services cannot be provided without their consent. In other words, such a person is obviously at liberty to refuse a service. If there is such a refusal, the question may arise as to whether or not the service offered was reasonable, and whether the refusal was unreasonable – and thus whether or not the local authority should offer other options. For instance, in the following case, the court did not consider the refusal unreasonable:

Unreasonable refusal of services? A family occupied a two-bedroom flat on the 12th floor of an 18-floor block. The man suffered from severe depression and pain in his knees that prevented him from negotiating stairs. He had psychotic symptoms and some features of post-traumatic stress disorder,and had been preoccupied with suicide and intrusive hallucinations. His wife had become significantly depressed.

Social services assessed and concluded that a ground-floor property was required with enough space for the rest of the family. A care plan was drawn up, stating that he needed a safe, secure, easily accessible and spacious environment in which to live so he had space away from his family, could access the dwelling and reduce the risk of self-harm. The man rejected the idea of short-let private property in principle due to lack of security of tenure and private sector rent rates, and argued that social services still had a duty to meet his needs.

The local authority argued that the refusal was unreasonable and that it had discharged its duty. The court accepted that a local authority does not have a duty ‘willy-nilly’ to provide accommodation under s.21 regardless of a person’s willingness to accept it. However, in this case, the refusal of private, short-let accommodation, and of a three-bedroom flat with a number of unsuitable steps, meant that the man had not begun to stretch the duty ‘to the point of willy-nilly’. The refusal was not unreasonable (R(Batantu) v Islington LBC).

The following court case provides a clearer example of unreasonableness on the part of the local authority, and indeed of a person’s inability to refuse a service, reasonably or unreasonably:

The court found that the local authority should have extended the time for review; not least because evidence concerning the woman’s mental illness would bear on the question of whether she was intentionally homeless under the Housing Act. The social services department should have assessed the woman; furthermore, the apparent refusal of accommodation by a psychiatrically ill applicant could not put an end to the continuing duty to provide accommodation under s.21 of the 1948 Act (R(Patrick) v Newham LBC).

The local ombudsman has warned that local authorities should not give up too readily when a person apparently refuses services:

Refusal of services: taking this at face value. A man with learning disabilities and autism had rejected offers of service from the local authority; he preferred to rely on his brother (who was however struggling to cope as carer). The local ombudsman accepted that, whilst a local authority cannot ‘force services upon an unwilling person’, nevertheless it must sometimes be cautious about taking a refusal of service at face value. The ombudsman considered that the local authority should have questioned whether the refusal constituted an informed decision. It should also have found a way to work both with the man and his brother; this was clearly possible because a community nurse, a psychologist and a worker from a voluntary organisation had all successfully interacted with the man; in which case, why could not the local authority do the same (Sheffield CC 2004)?

Even when a local authority is entitled to conclude that it has made a reasonable offer of a service, nevertheless refusal by a person of a particular option under one piece of legislation might not preclude continuing responsibilities under another. For example, an offer to an elderly couple of a care home place, which would have fully met their needs under s.21 of the National Assistance Act 1948, was refused. The court held that that it was a lawful and reasonable offer. However, the question then arose as to whether the local authority should still provide – notwithstanding this refusal of residential accommodation – other non-residential services, such as Meals on Wheels or laundry services, under s.29 of the 1948 Act. The court answered in the affirmative, since the accommodation duty under s.21 was one matter; the duty to provide services under s.29 another (R(Khana) v Southwark LBC).

7.2.6 UNREASONABLE BEHAVIOUR OF SERVICE USERS

Local authorities are often faced with the difficult decision of when to withdraw or withhold a service in the light of difficult or unreasonable behaviour by service users. The duty to meet assessed, eligible need should not be dismissed lightly; and where a person’s behaviour stems from the type of need that local authorities are under obligations to meet (e.g. mental health problems), the courts have stated that caution is required in determining what constitutes unreasonable behaviour:

Threats of violence and withdrawal of service. An asylum seeker was being provided with hotel accommodation by the local authority. As a result of violence towards hotel staff, the local authority warned him that they would assist once more. However, if further such problems arose, they would cease to assist. A recurrence took place at different premises and the authority consequently withdrew its assistance.

Nevertheless, the court stated that to the extent that s.21 of the 1948 Act was a safety net, the local authority should not lightly refuse to perform its duty; it would have to be satisfied of persistent and unequivocal refusal to comply with reasonable requirements.

Furthermore, such persistent and unequivocal refusal would be unlikely to be identified if the person’s behaviour stemmed from a depressive condition associated with the very ill-treatment that had led him to seek asylum. The local authority would be expected to make reasonable efforts to identify a person’s needs, although not to conduct a ‘CID investigation’ (R v Kensington and Chelsea RBC, ex p Kujtim).

The White Paper Valuing People,