IntroductionCare and Support Statutory GuidanceCare and Support Statutory Guidance
8.1The main purpose of an assessment is identified at paragraph 6.5 of the Care and Support Statutory Guidance:
6.5 The aim of the assessment is to identify what needs the person may have and what outcomes they are looking to achieve to maintain or improve their wellbeing. The outcome of the assessment is to provide a full picture of the individual’s needs so that a local authority can provide an appropriate response at the right time to meet the level of the person’s needs. This might range from offering guidance and information to arranging for services to meet those needs. The assessment may be the only contact the local authority has with the individual at that point in time, so it is critical that the most is made of this opportunity.
8.2As this indicates, the purpose of an assessment goes well beyond identifying what ‘eligible needs’ an adult or carer might have, that a local authority is required to meet.
8.3Experience shows that the main causes of litigation in this particular context are where a local authority:
•fails to start an assessment, even though the low statutory threshold has arisen, requiring an assessment;
1See, under the previous regime, R v Bristol CC ex p Penfold (1997–8) 1 CCLR 315. •fails to make immediately necessary provision pending completion of an assessment;
2See, under the previous regime, R (AA) v Lambeth LBC [2001] EWHC 741 (Admin), (2002) 5 CCLR 36. •fails to complete an assessment within a reasonable period: paragraph 6.29 of the Guidance states that an assessment –
… should be carried out over an appropriate and reasonable timescale, taking into account the urgency of needs and a consideration of any fluctuation in those needs,
and that local authorities:
… should inform the individual of an indicative timescale over which their assessment will be conducted and keep the individual informed throughout the assessment process;
•completes an unlawful assessment, on the basis of which inadequate services are offered, for example, by failing to involve relevant persons, failing to take into account relevant material or reaching unreasoned or irrational conclusions.
3See, again under the previous regime, R v North Yorkshire CC ex p William Hargreaves (1997–8) 1 CCLR 104 and R v Islington LBC ex p Rixon (1997–8) 1 CCLR 119. 8.4That said, applications for judicial review of assessment-related failures generally only succeed when the claimant establishes a clear breach of the legal parameters (see chapter 27 for more on judicial review). The courts tend to:
•focus on the substance of the issue, rather than on the detail of what remains, even now, a highly complex and detailed scheme that cannot always be perfectly adhered to;
•defer to professional evaluation and judgment, by adopting a relatively generous reading of the assessment material;
•manifest a strong appreciation that the function of judicial review is to correct legal errors and not to engage with factual disputes or ongoing monitoring of local authority activity, particularly bearing in mind the availability of alternative remedies (currently, alternative dispute resolution (ADR) and the statutory complaints procedure (see para
7.97 below)),
4See, in particular, R (Ireneschild) v Lambeth LBC [2007] EWCA Civ 234, (2007) 10 CCLR 243 and R (F, J, S, R) v Wirral BC [2009] EWHC 1626, (2009) 12 CCLR 452.especially where the challenge is perceived to be fact-specific or focussed on relatively minor aspects of the assessment process or as being little more than a challenge to the merits of the local authority assessment (see paras
27.8–
27.9 and
27.15–
27.28 below). That tendency is likely to increase as a result of:
•the enactment of section 31(2A) of the Senior Courts Act 1981, which provides that the High Court must refuse to grant relief ‘if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred’, unless there is an ‘exceptional public interest’ in granting relief (see para
3.8 above and para
27.10 below); and
•the forthcoming statutory appeals procedure (see para
7.97 above).
8.5The courts tend to involve themselves more readily on issues of interim relief, in order to hold the ring or create a situation of stability; where significant errors of law may be involved; where something appears to have gone seriously awry in the assessment process and where significant numbers of people may be involved; but again the court is likely to hold back when it perceives there to be a suitable alternative remedy and that tendency is likely to increase for the reasons set out above in para
8.4.