8.62R (Heffernan) v Sheffield CC [2004] EWHC 1377 (Admin), (2004) 7 CCLR 350
An assessment that was incompatible with the eligibility criteria was unlawful
Facts: Mr Heffernan was severely disabled as a result of Still’s Disease. Sheffield provided him with 24½ hours care per week but, on the basis of an independent report, he claimed he needed 27–30 hours and a live-in carer.
Judgment: Collins J held that Sheffield had failed to apply the guidance in circular LAC (2002) 13: Fair Access to Care Services. In particular, it had treated ‘significant health problems’ as falling within the Substantial Band, rather than the Critical Band. Care needs resulting from significant illness, or the need to prevent significant illness, fell within the Critical Band, and had to be met:
The practical consequences of the above interpretation may be shown by the following example. Mrs Jones cannot perform the majority of personal care or domestic routines although none are vital to her independence. At the same time her involvement in one or two support systems cannot be sustained. According to the eligibility framework of paragraph 16 of the FACS policy guidance, Mrs Jones’ difficulties with personal care and domestic routine fall within the substantial risk band: while her support system difficulties fall within the low risk band. If the council’s eligibility criteria include critical and substantial risks, the council is only obliged to consider meeting needs associated with personal care and domestic routines. It is not obliged to address needs associated with support systems. Furthermore, the council when determining which personal care and domestic routine difficulties to address is only obliged to address those which will ameliorate, contain or reduce the substantial risks. This means that Mrs Jones may be helped with bathing, aspects of toileting, aspects of cooking and paying bills, but may not be helped with gardening, shopping for weekly groceries (because these can be delivered by the local supermarket) and writing letters to friends.
There is another way to think about needs, risks and eligibility. If among an individual’s needs there are some needs which if presented by themselves would lead to risks that would be placed outside a council’s eligibility criteria, the council may consider it unnecessary to address those needs. The council would do so where it was sure the needs in question did not exacerbate or otherwise worsen the other needs to be addressed.
When implementing and applying FACS-based eligibility criteria, it is not generally possible to identify eligible needs directly from the risks described in eligibility framework of paragraph 16. This is because the eligibility bands are expressed as risks not needs, meaning that councils have to make sense of the risks and consider how best to tackle them. Hence, in the example above, Mrs Jones may not be helped with all the personal care and domestic routines that she can no longer do.