6.1Overall duty of assessment
This chapter considers the legal underpinning to referral, assessment, and decisions about community care services as made by local social services authorities. It covers access to the assessment process, how referrals are ‘screened’ by local authorities, the making of priorities in terms of how quickly assessment will be performed, the depth and scope of assessment, and decisions about eligibility for services.
It is at such pivotal points in the assessment process that local authorities are routinely forced to explore and exploit the uncertainties inherent in the community care system and outlined in Chapter 3. They do this in order to limit expenditure and to find escape routes from their potential obligations imposed by law and inflated by the aspiration of central government policy and guidance. The emphasis since 1993 on the process of assessment in both legislation and copious government guidance has been Janus-faced. On the one hand, it has resulted in a focus on good practice in assessment; on the other, it has opened the door to more systematic and formal rationing of services.
ACCESS TO ASSESSMENT
The NHS and Community Care Act 1990 makes assessment a duty and a service in its own right. Assessment is pivotal to the provision of community care services, including both residential and non-residential care services (see Chapters 9 and 11). Access to it is crucial. A number of considerations control who will be assessed, when they will be assessed and what sort of assessment they will get.
The legislation states that a local authority has first to decide whether a person appears to be in possible need of community care services; if the answer is affirmative, there is a duty to assess, if negative, there is none. Having carried out the assessment, the local authority has a duty to decide whether the person’s needs call for services.
If, during the assessment, it appears to the authority that the person is disabled then the authority must specifically decide about what services are required under s.2 of the Chronically Sick and Disabled Persons Act 1970.
SCREENING AND ACCESS TO ASSESSMENT
In order to determine who is eligible for an assessment, how quickly they should be assessed and what type of assessment they will get, local authorities operate screening procedures. Such screening is not legally prescribed, but in practice it acts as a potent filter. It can determine what happens to people, and is a tool used by authorities to regulate their responses to the demands made on them. Screening is a shadowy area of activity and occupies a key position amongst the uncertainties identified in Chapter 3 of this book.
The courts have stated that local authorities should set a low threshold for access to assessment, that in any case they should not take account of resources when setting that threshold – and that it is irrelevant that a person is ultimately unlikely to qualify for services, since assessment is a benefit and duty in its own right. The local government ombudsmen, too, emphasise the importance of adequate information-gathering at the screening stage, since otherwise local authorities are simply not in a position to make competent judgements about need and priority for assessment.
In addition, under s.4 of the Disabled Persons (Services, Consultation and Representation) Act 1986, local authorities continue to have a freestanding duty, on the request of a disabled person or carer, to make a decision about services under the Chronically Sick and Disabled Persons Act 1970; in other words, they cannot refuse disabled people some sort of an assessment.
ASSESSMENT OF NEED AND DUTY TO MEET NEED
The concept of need goes to the heart of community care assessment. If a person is not acknowledged by a local authority to have a need that calls for or necessitates provision, then he or she will not get any services. Local authorities in England are obliged to follow central government guidance on ‘fair access to care’, and to assess people’s needs in terms of risks to their independence.
The law courts have confirmed that when local authorities set policy and criteria of eligibility, they can take account of their limited resources when deciding whether it is necessary to meet assessed needs. On this basis authorities can also formally alter their threshold of eligibility from time to time. Consequently, people’s assessed needs and the services they receive can fluctuate not just according to their own changing conditions and circumstances, but also as a result of the changing financial situation and policies of local authorities. This can lead over time, in any one local authority, to the application of more stringent tests of eligibility for both existing users and potential new users of services. Removal or reduction of services may or not may be lawful; it all depends on the process underpinning the decision.
The Department of Health guidance on fair access to care states that local authorities should set a threshold of eligibility, the restrictiveness of which will depend on the local resources available. That is, the fewer resources, so the higher the threshold should be set. Over last two years, the trend across local authorities in England has been remorseless; thresholds have been creeping higher and higher, thus restricting community care services to ever fewer people. There is now some unease about the implications of this; the Commission for Social Care Inspection has warned that the dignity, welfare and quality of life older people is being seriously undermined.
If thresholds of eligibility are not set realistically in relation to allocated resources, they might allow too many people to qualify for services and strain budgets to breaking point. Local authorities then attempt to execute shortcuts that run the risk of being unlawful, in order to avoid onerous obligations.
Nonetheless, once a local authority has set its threshold for a period of time, then the local authority has a duty to meet a person’s needs insofar as they are assessed to come over the threshold. This is an absolute duty and a lack of resources is no defence. However, if there is more than one option available, then the local authority is obliged only to offer the cheapest – so long as that option will genuinely meet the assessed, eligible needs.
At the time of writing, central government is introducing a new policy in social care, referred to as self-directed care involving individual or personal budgets (see Chapter 13). Part of this involves local authorities encouraging self-assessment, that is, for people to assess their own needs. What is meant exactly by self-assessment is, at the time of writing, not entirely clear largely because of the absence of any legislation or definitive guidance.
However, there may be some uncertainty as to how self-assessment fits exactly into the existing community care legislation and guidance, especially if service users, rather than the local authority, are in some sense to have the last word about their needs and the services required to meet them. The legislation does not allow this.
6.1 OVERALL DUTY OF ASSESSMENT
Local authority social services departments assess people aged 18 years or over under s.47 of the NHS and Community Care Act 1990. In order to gain services set out in other legislation, people need to ‘get through’ this assessment process, which therefore serves as a gateway. In summary, section 47 of the 1990 Act is as follows:
•Main duty of assessment. If it appears to a local authority that a person, for whom it may provide or arrange for the provision of community care services, may be in need of any such services, then:
it must carry out an assessment of his or her needs for those services
having regard to the results of that assessment, the authority must decide whether his or her needs call for the provision by the local authority of any such services (s.47(1)).
•Disabled people. If, during the assessment, it appears that the person is disabled, then:
the local authority must take a decision as to whether he or she requires the services mentioned in s.4 of the Disabled Persons (Services, Consultation and Representation) Act 1986 (in effect services under s.2 of the Chronically Sick and Disabled Persons Act 1970)
the authority must inform the person about what it is doing and of his or her rights under the 1986 Act (s.47(2)).
•Assistance from the NHS or housing authority. If, during the assessment, it appears to the local authority that the person may need health services under the NHS Act 1977 from a health authority or NHS primary care trust (PCT) or from a housing authority (that is not the social services authority carrying out the assessment), then:
the local authority must invite the PCT, health authority or housing authority to assist in the assessment, to such extent as is reasonable in the circumstances
in making its decision as to what services the person needs, the local authority must take into account any services likely to be made available by the PCT, health authority or housing authority (s.47(3)).
•Urgency. Nothing prevents a local authority from temporarily providing or arranging for the provision of community care services for any person, without carrying out a prior assessment, if the authority is of the opinion that the person requires those services as a matter of urgency; in which case, the local authority must carry out an assessment as soon as practicable (s.47(5,6)).
6.1.1 TRIGGERING THE OF DUTY OF ASSESSMENT
The duty to assess is triggered if it appears to the local authority that a person for whom it may provide community care services may be in need of such services (NHS and Community Care Act 1990, s.47). The duty is not dependent on a request by the person; it is triggered by the appearance in some way, to the local authority, of possible need. Clearly if a person refused an assessment, the local authority may have difficulty in carrying out an effective assessment. Nonetheless, the authority arguably has to make reasonable efforts.
The duty is not absolute, but has been held by the courts to be a strong one. They have stated that the duty is set at a low threshold; furthermore the state of the local authority’s resources is not relevant:
Assessment of person reporting anxiety and depression. A 52-year-old woman suffered from anxiety and depression. She was unintentionally homeless, but had rejected an offer of accommodation under the Housing Act 1996, and sought an assessment and provision of accommodation from social services. Social services refused to assess, partly on the basis that it would be futile and a poor use of resources to do so, where there was no hope of meeting the need.
The court rejected this approach, stating that resources were irrelevant to the duty to assess, that the threshold for entitlement to assessment was very low, and that in any case assessment served a useful purpose even if services did not follow (R v Bristol CC, ex p Penfold).
The courts have also held that the duty to assess arises even if a local authority knows that it would only ever have a power rather than a duty to provide services for the person – and even if those services were anyway not physically available within the area of the local authority
Assessment of a person not ordinarily resident. A seriously disabled man suffering from viral brain damage and epilepsy was resident at the British Home and Hospital for Incurables. His mother, through solicitors, requested that a local authority assess his needs, because she felt he needed different types and levels of care than he was receiving at the hospital. The local authority argued that he was not ordinarily resident in its area, that therefore it had only a power to provide services under s.29 of the National Assistance Act 1948, and that anyway the services in question were not physically available in its area. Thus, it had no duty to assess.
The court rejected the authority’s argument, pointing out that the duty of assessment hinged not on a factual capacity to provide services but on a legal capacity (R v Berkshire CC, ex p Parker).
Despite legal cases such as the above, local authorities still fail to assess people’s potential needs, on the ground that they will probably not be eligible for services. Typically, such a refusal concerns cleaning and shopping needs, as picked up by the local government ombudsman in the following case:
Failure to assess for cleaning and shopping needs. A woman suffered from severe health problems: sarcoidosis, extensive fibrosis of the lungs, chronic obstructive airways disease, atrial fibrillation, epilepsy and a learning disability and a heart problem. The slightest exertion made her breathless. Twice she and her husband requested assistance with cleaning and shopping, but the council did not assess her needs. Instead it had a policy of not providing cleaning and shopping services; it referred her to an independent company. In effect, the woman and her husband had been screened out.
The local ombudsman found maladministration, since the council had failed to carry out an assessment, and it could not lawfully delegate its duty to assess to an independent provider. Furthermore, the ombudsman noted that Department of Health guidance reinforces the legal position that the duty of assessment depends on potential need, and not on the service requested (Salford CC 2003).
Sometimes the failure is more haphazard:
Informality with man with mild learning disabilities. A man with mild learning disabilities got ‘lost in the system’ because of the informal way his long-term social worker had managed his case, without a formal recorded assessment. For a lengthy period he became nobody’s responsibility, his mother’s efforts gained no response, and he was not even told when the social worker left the council. This was maladministration. His circumstances deteriorated in relation to his drug-taking ‘friends’ and his ability to clean his flat and prevent damage. He then abandoned his tenancy (previously the social worker had helped prevent him being evicted) (Derbyshire CC 2001).
An assessment may not be a full one and so be maladministration:
Lack of full assessment. Over a period of six years, the local authority failed properly to assess the needs of a girl/woman who had multiple and profound mental and physical disabilities. However,it had assessed a need for weekend respite care to be provided at a care home; but when the charity that provided this care was forced to close the home on Sundays, the local authority stated that it could not be held responsible for this effective withdrawal of service. It did not respond with a formal reassessment that would have had to conclude that either there was no longer a need, or that it was in breach of its duty. Instead it simply denied its commitment to the family. The local ombudsman found maladministration (North Yorkshire CC 2002).
In another case, the Court of Appeal found a local authority’s decision manifestly flawed; it had simply acted on the defective recommendations of a local continuing care panel, the function of which was anyway advisory only. The local authority should have cured the defects by itself taking a fully informed decision (R(Goldsmith) v Wandsworth LBC). In some instances, councils appear to go out of their way not to assess people:
Failure to assess person with Asperger’s syndrome. A man with Asperger’s syndrome was living in a residential hostel and should have been assessed for adult services by the time he was 17 and a half years old. This did not happen. Furthermore, once he was 18 years old and a complaint had been made, still no assessment was carried out. This was despite an assessment having been agreed by a senior manager dealing with the initial stage of the complaint, then recommended by an independent investigating officer, and finally required by the review panel. Still it did not happen.
In the meantime, he had been placed as an adult in supported lodgings. However, the lack of assessment, together with a failure to give the landlady more information about his behaviour and failure to review quarterly his progress, was maladministration. The landlady, who was the complainant, contended that she was not just providing supported lodgings but a care package, such was her input into the man’s care,and that she should be paid accordingly. The council refused and stated that she could have ceased to provide lodgings for him at any time.
The ombudsman found this to be an ‘extraordinary’ argument, given that the man was particularly vulnerable, had already experienced one ‘failed’ hostel placement, and would have lost the accommodation and a supportive relationship which at least two professionals had assessed was highly beneficial to him. Furthermore, the council would then have had to find a suitable alternative at short notice, using staff and financial resources that appeared to be in short supply. The ombudsman found the delay in making increased payment to the landlady was ‘completely unacceptable’, and that the system had probably failed others in her position. The ombudsman found serious failings which may have been symptomatic of inherent weaknesses in the system. This was maladministration.
She recommended that the council reimburse the landlady from the man’s 18th birthday onward, the difference between the supported lodgings rate and a care package rate – and anyway pay her immediately £5000 on account, of which £1000 was to recognise the time and trouble relating to the complaint. She also recommended that the council consider the action required on various matters: to ensure that assessments for care leavers were completed by the age of 17 and a half years with care packages in place by the time they were 18, to ensure seamless transition from children’s to adult services, to ensure that recommendations of independent investigating officers and review panels were recorded, monitored and acted upon, to ensure reviews of individual cases were conducted in appropriate timescales, and to ensure payments to supported lodgings providers were made promptly and reliably (Birmingham CC 2006).
A failure adequately to assess can typically lead to a catalogue of woe and maladministration:
Failure to assess leading to catalogue of maladministration. The failure to carry out a detailed risk assessment for an autistic man with fragile X syndrome, on transfer from children’s to adult services – together with a lack of respite facilities for autistic young adults – led to a catalogue of maladministration.
This included a lack of precision about how often he needed respite care, a serious assault on a residential social worker who went on long-term sick leave and ultimately left his job,failure to warn the parents that he was about to be excluded from the respite facility he was attending, unreasonable exclusion without making suitable, alternative arrangements, failure to have developed exclusion criteria, failure to refer the exclusion to the Learning Disability Partnership Board, and failure to provide for assessed respite needs for a period of about 15 months (as opposed to a period of three months which might have been acceptable following exclusion) – and failure to arrange the required respite care following the conclusion and recommendations of both the formal and review panel stages of the complaints procedure.
The upshot was that the man did not receive respite care to which he was entitled (a total of 67 days of day care and 30 days of overnight respite). He became bored and withdrawn, which was very damaging to him. His parents had no respite and this caused stress, anxiety and health problems (Stockton-on-Tees BC 2005).
22.214.171.124 Future needs and the triggering of the duty to assess
The question of whether a local authority is obliged to assess future needs sometimes arises.
In R v Bristol CC, ex p Penfold, the court stated that although the National Assistance Act 1948 was couched in the present tense, nevertheless ‘imminent events’ such as eviction ‘must fall for consideration’. Similarly, in R v Westminster CC, ex p A and in R v Newham LBC, ex p Gorenkin, the courts referred to the need for local authorities to anticipate reasonably the point at which asylum seekers would come to be in need of care and attention under s.21 of the National Assistance Act 1948. And the local ombudsman has found maladministration when one of the reasons cited by the council for failing to assess a school-leaver was that a full assessment could not be undertaken until the person was in the community. Yet this meant that appropriately supported living was not arranged when he left school (Knowsley MBC 1997).
The courts have held that a local authority comes under a duty to assess in case of a deferred conditional discharge under the Mental Health Act 1983, where s.117 services are in clear prospect (R(B) v Camden LBC). It has been suggested that the same principle would apply to prisoners before release, but when the release date is known. It has also been argued that, even before release is imminent, a local authority might be obliged to assess a prisoner if he or she has community care needs while in prison (Bowen 2008).
126.96.36.199 Duty to assess and the resources of the person being assessed
The level of a person’s resources, and eventual ability to fund their own services, are irrelevant to the local authority’s duty to assess their needs. Department of Health guidance has been stating this ever since 1990. For instance, ‘the assessment of financial means should.. .follow the assessment of need and decisions about service provision (DH 1990, para 3.31). More recently, guidance was just as unequivocal: ‘an individual’s financial circumstances should have no bearing on whether a council carries out a community care assessment. Nor should the individual’s finances affect the level or detail of the assessment process’ (LAC(2002)13, para 70). Yet still local authorities sometimes either decline to carry out an assessment or carry out a cursory one only, if they believe the person has adequate resources to fund their own care.
6.1.2 DIRECTIONS AND GUIDANCE ON ASSESSMENT
The 1990 Act gives the Secretary of State the power to issue directions about how assessments should be carried out (NHS and Community Care Act 1990, s.47). The Department of Health has issued such directions (DH 2004d):
•When assessing a person under s.47 of the 1990 Act, a local authority must consult the person being assessed, consider whether the person has any carers, and – if the local authority thinks it appropriate – consult those carers.
•The local authority must take all reasonable steps to reach agreement with the person and- if the local authority thinks it appropriate – with any carer, concerning any community care services it is considering providing.
•The local authority must provide information to the person and – if it thinks appropriate – to any carer, about the amount of any charge payable for the services.
These directions link directly to the plentiful guidance issued about involving service users (see 6.8) and informal carers (see 13.5.4) in assessment.
Nevertheless, in the light of this power (finally exercised in 2004) to issue directions on assessment, the courts suggested in one case that guidance on assessment – even statutory guidance made under s.7 of the Local Authority Social Services Act 1970 – is of limited value. It has only to be taken account of; this is because the legislation clearly envisages that it is directions rather than guidance that would carry real weight in determining how assessment is to be carried out (R(B&H) v Hackney LBC).
However, in many other cases, the courts have attached importance to policy guidance on assessment. Thus, Community care in the next decade and beyond (DH 1990), has been referred to and given weight many times. For example, this guidance underlay findings of breach statutory duty for failing to take account of a person’s preferences (R v North Yorkshire CC, ex p Hargreaves) and failure in a care plan (R v Islington LBC, ex p Rixon). More recently, the court made extensive reference to, and appeared to place considerable weight on, ‘fair access to care’ guidance (LAC (2002)13), concerning the setting and application of eligibility criteria for the purpose of assessment (R v Sheffield CC, ex p Heffernan).
6.1.3 LOCAL AUTHORITY RESPONSIBILITY FOR ASSESSMENT DECISION
The local authority is identified in s.47 of the NHS and Community Care Act 1990 as responsible for assessment and the decision about services. Other than in the case of formally agreed joint working with the NHS (NHS Act 2006, s.75), the local authority must itself take these decisions. This would not preclude the local authority making use of assessment and expertise from another agency; but the final decision about both needs, and whether they call for services, must remain with the local authority.
The importance of this principle is recognised in ‘fair access to care’ guidance issued by the Department of Health. It stresses the importance of competent local authority staff carrying out reviews, rather than service providers – although the latter would have a useful contribution to make (LAC(2002)13, para 61). Likewise, policy guidance issued about the assessment of informal carers states that the local authorities could contract with another body to carry out part of the assessment process, but that assessment is a statutory function of the local authority, which means that it has to make the final decision. More, this final decision should not simply be a rubber-stamping of another body’s view: ‘it is not enough for the local authority to simply check on a complete or partial basis the outcomes of another organisation’s assessments’ (DH 2005, para 45).
Therefore, clarity is required as to who is formally responsible and authorised for carrying out the assessment and taking the final decision about services. In the following case, the court could only conclude that the local authority had not legally taken an assessment decision:
Who is authorised to make the decision about community care needs? A health authority occupational therapist (OT) recommended that an elderly couple should have installed either a vertical lift or a stairlift to give them ingress and egress from their first floor council flat. The recommendation was also backed by an ‘advocacy officer’ of the council. The recommended home adaptations were eventually refused by the housing department of the council on grounds of cost. The applicants claimed that having assessed the need, the council was obliged to meet it.
The judge decided that, in fact, the council had failed to carry out an assessment under s.47 of the NHS and Community Care Act 1990 and s.2 of the Chronically Sick and Disabled Persons Act. Confusingly for the service users, the statements of the advocacy officer, the care plan she had drawn up and the recommendation of the occupational therapist did not carry sufficient weight, since the provision of services was ‘the concern of the council itself or of any committee or officer to whom a specific power is delegated’. The OT and the advocate were not authorised to carry out assessment and to decide about service provision. Thus, the judge found not that the authority was in breach of its statutory duty to provide the stairlift, but that it had been profiting from its failure to carry out the assessment (R v Kirklees MBC, ex p Daykin).
It is not wholly clear how self-directed care and self-assessment, in terms of individual budgets (see below and Chapter 13), will sit with the principle of the local authority having the final say and taking the overall decision.
6.1.4 COMMUNITY CARE SERVICES
Community care assessment concerns people’s potential need for community care services. Such services are defined in s.46 of the NHS and Community Care Act 1990, by reference to other legislation. This consists of Part 3 of the National Assistance Act 1948, Chronically Sick and Disabled Persons Act 1970 (s.2), Health Services and Public Health Act 1968 (s.45), NHS Act 2006 (s.254 and schedule 20), and Mental Health Act 1983 (s.117). This legislation covers a wide range of non-residential and residential services (see Chapters 9 and 11).
6.2 DUTY TO ASSESS DISABLED PEOPLE
If during the s.47 assessment it appears to the local authority that the person is disabled, the authority has a duty to make a decision as to whether services referred to in s.4 of the Disabled Persons (Services, Consultation and Representation) Act 1986 are required. The services referred to in the 1986 Act are those listed in s.2 of the Chronically Sick and Disabled Persons Act 1970.
This is going round the houses. However, if a local authority is somehow attempting to avoid this duty being triggered during the s.47 assessment, then s.4 of the 1986 Act anyway remains freestanding. In other words, under s.4, a disabled person (or his or carer) would seem able to make a freestanding request that a decision be made as to whether his or her needs call for any of the services contained in s.2 of the 1970 Act. The local authority then has a duty to comply with that request. In one case, a request for assistance by a mother in respect of her disabled child was accepted by the court as a request for a s.4 decision under the 1986 Act. It might not have been a formal request, but the court (and the local authority) had to look at the reality of the situation (R v Bexley LBC, ex p B). The 1986 Act was originally passed because some local authorities were reported as arguing, with some sophistry, that the Chronically Sick and Disabled Persons Act 1970 conferred an obligation to meet needs once those had been determined, but no obligation actually to assess or determine those needs in the first place (Hansard 1986).
Local authorities will inevitably make priorities in terms of how quickly they assess people (see 7.4). However, this strong duty of assessment does not mean that disabled people with a less urgent, lower priority can simply be ignored – as the local ombudsman has pointed out:
Closing waiting lists for assessment: failure to assess disabled people. A local authority had long waiting lists for occupational therapy assessments. The ombudsman investigated the case of one woman who had had to wait 56 months for assessment. The problems were such that waiting lists were closed.
The ombudsman found serious failures and maladministration. He noted: ‘The law makes no distinction between the Council’s duty to make an assessment in “urgent” and “non-urgent” cases. Any disabled person is entitled to request an assessment and to expect that the request is met within a reasonable time. In my opinion the Council may be failing to discharge their duties under the Chronically Sick and Disabled Persons Act 1970, and I am concerned that they did not seek legal advice on this matter before the lists were closed… The majority of the service users are elderly people suffering from severe disabilities who may not be able to make repeated enquiries to find out whether the list has been reopened in their area. Many of these people may not approach the Social Services Department a second time for assistance, and may continue to live in conditions of extreme discomfort and potential danger’ (Hackney LBC 1992).
The following case illustrates how a local authority failed to assess, under the 1986 Act, a disabled woman’s need for shelter for her powered outdoor wheelchair. It had effectively screened her out by means of a letter. For the local ombudsman this was maladministration:
Screening out a disabled person: failure to assess under the 1986 Act. A woman lived in a council house and received income support and mobility allowance. She was in poor health, had difficulty in walking and was entirely reliant on a neighbour to go shopping or to other facilities such as the local library. In order to alleviate these problems, she had bought an electric wheelchair but now required a shelter for it for protection against the weather and vandals. She had identified a prefabricated store costing £l000,and a charity had given her £600 towards the cost. She hoped to enter into an agreement with the supplier to pay the rest by instalment but was concerned that this financial commitment was beyond her means.
No record of assessment. The council had some years ago provided a hard-standing and pavement crossing for the woman when she still had a car (since given up). However, now it claimed that it had ‘no budgetary provision’ for storage facilities for wheelchairs. It further argued that no legal duty arose under s.2 of the Chronically Sick and Disabled Persons Act 1970 ‘in the absence of any suggestion of personal danger or serious inconvenience’. The council’s files held no record of any assessment of the woman’s need. The council wrote to the woman, stating that ‘a request had been made for her needs to be assessed, but that from the information received she did not appear to meet the Council’s criteria for a service and would not therefore receive a visit’. Enclosed with the letter was a copy of the council’s criteria of eligibility; the letter did state that the woman should contact the council if she felt that she had missed out important details from her application.
Failure to make decision under l986 Act. The ombudsman found maladministration. The council had made no assessment at the outset, and had then on reconsideration decided that she did not merit a visit (an assessment) because she did not meet the criteria it had sent her. Furthermore it had set out its criteria in an ‘exhaustive list’. All this meant that the council was in breach of its duty to decide – on a request made under s.4 of the Disabled Persons (Services, Consultation and Representation) Act 1986 – whether services under s.2 of the Chronically Sick and Disabled Persons Act 1970 were needed (Sheffield CC 1995).
6.3 REFERRAL, SCREENING AND INITIAL ASSESSMENT
Given the demands made on them, local authorities adopt various types of screening procedures, in order to determine whether a particular person is eligible for assessment – and, if so, what priority should be accorded in terms of how quickly the assessment should be carried out. However this screening is carried out, it needs to be understood in the context of the statutory duty to carry out an assessment under s.47 of the NHS and Community Care 1990. Local authorities must in principle attempt to distinguish between (a) screening a person out from assessment altogether and (b) carrying out a simple assessment of a person and then explaining that he or she does not qualify for services because the need is deemed insufficiently high.
In the first case, people would be screened out because they do not appear to be in need of community care services. In the second, they would be potentially in need of community care services, and would then be assessed as coming beneath the authority’s threshold of eligibil- ity and so not be entitled to services. Since the threshold for assessment is low (R v Bristol CC, ex p Penfold), it is likely that many more people will fall into the second category than the first; that is, be eligible for some sort of assessment, even if they are probably not going to be eligible for services. The following court case exposed the dilemma for a local authority that wanted both to have its cake and eat it too:
Simple assessment or screening out? A local authority had been unable to make up its mind whether legally it should say that it had refused to carry out an assessment – or that it had carried out an assessment, albeit a simple, informal one. In the event, a letter written by the assessor, that it would have been preferable to maintain that an assessment had been carried out, gave the game away; the judge concluded that it had in fact not been carried out.
The judge added that, if he was wrong in this conclusion, then the authority had still acted unlawfully since any assessment it claimed to have carried out would have been in breach of policy guidance which talks of a comprehensive and flexible procedure able to determine appropriate responses to requests for assessment. The implications of this were that an assessment is directed at a particular person, and should fully explore need in relation to services which the authority has the legal power to supply (R v Bristol CC, ex p Penfold).
The local ombudsman, also, has found maladministration associated with an inadequate administrative system for screening out disabled people from obtaining access to home adaptations. The identified inadequacy was made worse by its indiscriminate application to both housing and social services legislation:
Self-completion questionnaires. When people applied for disabled facilities grants under the Housing Grants, Construction and Regeneration Act 1996, they were asked to complete a questionnaire; the application of priority points was based entirely on the replies. If a person was awarded fewer points than the threshold figure, the request was not considered further. Until the person reached that threshold (at a later date), he or she would not be seen by a professionally qualified assessment officer. The questionnaire replies were handled by an administrative assistant. This was maladministration.
However, the council was using the same system also to determine its potential responsibilities to people under the Chronically Sick and Disabled Persons Act 1970. There was no separate assessment in terms of social services responsibilities for adaptations. This too was maladministration (Neath Port Talbot County BC 1999).
The courts have not explicitly stated whether or not telephone assessments are unlawful. What they have said is that the simplicity or complexity assessment must be proportionate to the potential needs of the person (R v Bristol CC, ex p Penfold). Nevertheless, it is undeniable that the less and the more cursory the contact the local authority has with a person, the more likely it is to make a mistake:
Inadequacy of telephone. In one ombudsman investigation, concerns about the way in which ‘first level assessment’ operated in determining a person’s priority led to a complaints review panel recommending that the referral form completed at this stage should be completed face to face and not just on the telephone (Ealing LBC 1999).
So, when councils implement policies and practices to assess ever more people on the telephone, they need to build in safeguards in order to avoid making the type of mistake that would put them in breach of their duty adequately to assess people. The Commission for Social Care Inspection has explicitly referred to this issue, especially since the screening role is now performed so frequently by non-professional staff. Safeguards might include study for national vocational qualifications, managerial supervision, regular meetings of team managers, joint training with professional staff and co-location of both screening and assessment staff (Henwood and Hudson 2007, p.60).
6.4 LEVEL OF ASSESSMENT
Central government guidance issued in 1991 refers to different levels of assessment, which would be applied in proportion to the apparent potential needs of people being referred. Six levels were suggested, ranging from the simple to the comprehensive (SSI/SWSG 1991, para 2.18).
More recent guidance has been issued by central government on what it refers to as ‘single assessment’ for older people. It too envisages different assessment levels, but this time suggests only four: contact, overview, specialist and comprehensive (HSC 2002/001). This latter guidance does not explicitly supersede the 1991 guidance.
Any such guidance on assessment nevertheless has to be implemented in the context of the legislation. A local authority must decide, in the case of a person clearly entitled to such an assessment, what level of assessment will reasonably satisfy this entitlement. Thus, the local ombudsman has criticised an over simple assessment, for a single service only, of a significantly disabled person:
Single service assessment not a proper assessment. A man who was an amputee, wheelchair user, diabetic and doubly incontinent received what the local authority called a ‘single service’ assessment for home help. He was not offered an assessment of his potential need for any other service. He subsequently received a further single service assessment for a special chair. The ombudsman concluded that the local authority had failed properly to assess him as it was legally obliged to do under s.4 of the Disabled Persons (Services, Consultation and Representation) Act 1986 and s.2 of the Chronically Sick and Disabled Persons Act 1970 (Westminster CC 1996).
6.4.1 SCREENING AND ALLOCATING PRIORITIES FOR ASSESSMENT
The local ombudsman has pointed out that if there is to be screening, then it needs to be of an adequate standard:
Screening and allocating priorities for assessment. In one local ombudsman case a disabled housing association tenant applied for disabled facilities grant. She needed to be assessed by social services in order that the recommendation could be made. She was placed on a waiting list of 549 people, of whom 111 were deemed to be a priority; the average wait was a year. The social services assessment officer conceded that identifying priority assessments was ‘hit and miss’ because application forms contained inadequate information on which to base the decision. This was maladministration (Bolton MBC 1992).
Likewise, failure to remedy poor referral information may result in an excessive wait and maladministration:
Improperly determined priority for a person suddenly blind. A woman suffered a sudden and complete loss of sight. She was referred to the sensory disability team. She was considered not to have a high priority and should have been contacted within six weeks; however, a rigid three-month waiting time was being operated. The local ombudsman investigated and found maladministration; in addition her priority had been improperly determined, since she had been at risk from burning and scalding and suffered injuries, which her doctor had seen. This had occurred because of the inadequacy of the original referral (based on a sparse report) and the failure of the sensory disability team to follow up subsequently with the woman what the issues and risks really were (Stockport MBC 2003).
In the following case, too, the ombudsman considered the adequacy of the referral process, in terms of the training and competence of a customer services officer:
Inadequate treatment of referral and competence of customer services officer. The father of a man who had a drinking problem and died subsequently of a heart attack complained that the local authority had not responded adequately to a request that his son be urgently visited. The ombudsman found that the customer services officer had been properly trained and was capable of reaching decisions about people’s priority. Furthermore, although it could be argued that a trained social worker would be better placed to make such priorities, the council’s wish to free its social workers for more urgent work was understandable. Nevertheless, the ombudsman found that the customer services officer who dealt initially with this referral did not give the request full and proper consideration. This was maladministration (St Helens MBC 1998).
Over-simple priorities or categories will also not do for the local ombudsman:
Over-simple system of priorities. A disabled child had to wait 15 months for new seating, including a 12-month wait for assessment. The assessment had been prioritised as complex, which meant that it was on a longer waiting list than existed for cases categorised as emergency or simple. The ombudsman concluded that the system of priorities was ‘over-simple’, because within the category of complex cases there was ‘no provision for relatively simple solutions to tide people over until a full assessment’ could be made. Furthermore, there was no provision for treating some cases more urgently within the ‘complex’ category, even though they were not emergency in nature. This oversimple system meant that the child’s needs were not met promptly and was maladministration (Rochdale MBC 1995).
6.4.2 FORMALLY COMPLYING WITH DUTY OF ASSESSMENT
The courts will up to a point insist that the local authority complies formally, and is seen to comply, with duties of assessment and decisions about services in the correct logical order. This will be especially so if the shortcuts apparently taken in the assessment process lead to a misunderstanding of the legal questions that need to be asked before a final decision is made.
Asking questions in the right order. When deciding whether an autistic child qualified for a disabled facilities grant (see Chapter 16 in this book), the local authority should have first asked the question whether the proposed adaptation fell, in principle, within the purposes for which such a grant is mandatory (in this case the purpose of safety). Second, it then had to ask whether the adaptation would be ‘necessary and appropriate’ in respect of meeting need and minimising risk. Instead the local authority had stated that the works were not mandatory because they did not materially meet the child’s needs. The court held that this was collapsing two questions into one and was consequently unlawful (R(B) v Calderdale MBC).
When a child in need was assessed under s.17 of the Children Act 1989, the care plan concluded that a package of support was required at home, rather than a residential placement. But the package of support was not identified in the care plan; this meant the decision was seriously flawed (R(LH) v Lambeth LBC). However, the courts will not always take this exacting approach if they think that in substance the assessment was performed adequately:
Ticking all the boxes: not always required. When a local authority offered care home accommodation to an elderly couple but not ordinary accommodation in the community, the court accepted that the local authority had not filled in every box on the assessment forms relating to unmet needs. However, in the context this did not indicate that it had failed to take account of those needs. In the particular situation, the reasons why only one option was offered was because this was the only reasonable option (R(Khana) v Southwark LBC).
Formal assessment: tidy-mindedness not the solution. In a case about housing for a family, the court dismissed the argument that – irrespective of the housing legislation – formal assessments should be carried out under the Chronically Sick and Disabled Persons Act 1970, the Children Act 1989 and the Carers (Recognition and Services) Act 1995. It ‘did not accept that at all. There have been numerous assessments in this case. It may be that some are better than others. It may be that some do not explicitly state under what statute or statutes they have been made. The judge exercised his discretion properly…with eminent good sense, when he said that “What this lad needs and what his parents need is a new home”…any correction of a lack of formal assessment in the past would simply be a bit of tidy-minded putting the files in order and would not assist resolution of the real problem’ (R v Lambeth LBC, ex p A).
Failure to go through the right steps: not fatal to a lawful assessment. A dispute arose about whether a 34-year-old man with severe epilepsy was entitled to have an adaptation for an upstairs lavatory, because of the danger of using the stairs. The local authority occupational therapist’s report concluded that he did not qualify, because use of a commode at night would be appropriate, and because his able-bodied partner could empty the commode during the night. The court found that the local authority’s assessment had not clearly followed the three-stage process demanded by the legislation, in terms of deciding whether the person might be in need of services, then assessing, then deciding whether needs call for services. The court accepted that there had been no ‘formalistic’ assessment, but was not minded to intervene since there was no prospect of the decision turning out any differently. This was because the council had in substance, if not in form, asked the right questions (R v Sheffield CC, ex p Low).
6.5 HEALTH AND HOUSING NEEDS IDENTIFIED DURING ASSESSMENT
If, during an assessment, it appears that the person may have health or housing needs, the local authority must invite the health authority, NHS primary care trust or housing authority (if different to the assessing social services authority) to participate in the assessment. The local authority must then take account of what the NHS or housing authority is likely to provide, when making its decision about what services the local social services authority should provide (NHS and Community Care Act 1990, s.47).
The courts have pointed out that local authorities should not be wary of this duty to identify housing needs, simply because they fear that they themselves may have ultimately to meet them – if the housing authority is unable or unwilling to. The courts will be slow to impose a duty on social services to provide ordinary housing (R(Wahid) v Tower Hamlets LBC),