Introduction and principlesCare and Support Statutory GuidanceCare and Support Statutory GuidanceCare and Support Statutory Guidance
9.1By this stage, the local authority will have completed a ‘needs assessment’ (for an adult) and/or a ‘carer’s assessment’ (for a carer), under sections 9–12 of the Care Act 2014. It will also have determined in writing which needs meet the eligibility criteria. In the case of an adult it will have (i) ‘considered’ ‘what could be done to meet those needs’; (ii) ‘ascertained’ ‘whether the adult wants to have those needs met by the local authority’; and (iii) ‘established’ ‘whether the adult is ordinarily resident in the local authority’s area’ (section 13(2)). In the case of a carer, the local authority will also have (i) ‘considered’ ‘what could be done to meet those needs’; and (ii) ‘established’ ‘whether the adult needing care is ordinarily resident in the local authority’s area’ (section 13(3)).
9.2So, the scene is set for care planning, the main purpose of which is to identify eligible and other needs and how (if at all, in the case of ineligible needs) the local authority is going to meet them. The next section considers in more detail what is required during the care planning process but, at this stage, attention is drawn to two principles.
9.3First, it is essential to lawful care planning that the local authority involves the applicant, any carer and other relevant persons so that they can address the relevant issues. The statutory duty to involve the adult, the carer and other relevant persons in the preparation of a care and support/support plan and ‘take all reasonable steps to reach agreement with the adult or carer for whom the plan is being prepared about how the authority should meet the needs in question’ is at section 25(3)–(5) of the Care Act 2014. As it is put in the Care and Support Statutory Guidance ‘The person must be genuinely involved and influential throughout the planning process…’ (paragraph 10.2) and:
10.49 In addition to taking all reasonable steps to agree how needs are to be met, the local authority must also involve the person the plan is intended for, the carer (if there is one), and/or any other person the adult requests to be involved. Where the person lacks capacity to ask the authority to do that, the local authority must involve any person who appears to the authority to be interested in the welfare of the person and should involve any person who would be able to contribute useful information. An independent advocate must be provided if section 67 of the Act applies (see chapter 7). The person, and their carers, will have the best understanding of how the needs identified fit into the person’s life as a whole and connect to their overall wellbeing (see chapter 1). They are well placed to consider and identify which care and support options would best fit into their lifestyle and help them to achieve the day to day outcomes they identified during the assessment process. In practice, local authorities should give consideration to include a prompt to the person during the initial stages of the planning process to ask whether there is anyone else that the person wishes to be involved. Where the person lacks capacity, the local authority should make a best interests decision about who else should be involved.
See further at para
9.31 onwards.
9.4Second, a striking feature of the Care Act 2014 is that it does not, as the earlier regime did, present a list of specific services that a person may qualify for. Rather, it sets out an illustrative list of the types of provision that may be offered and an illustrative list of how provision may be made, so as to promote flexible and imaginative solutions that engage with real needs and preferences directly and not through the potentially distorting lens of what services are available: see section 8 of the Care Act 2014 (set out below at para
9.27).
9.5Otherwise, the litigation issues that have arisen in the past, and that are likely to arise in the future, are where a local authority:
•fails to complete a care plan, at all or within a reasonable period of time, or to give it to the adult/carer (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’);
•fails to make immediately necessary provision pending completion of an assessment;
1See, under the previous regime, R (AA) v Lambeth LBC [2001] EWHC 741 (Admin), (2002) 5 CCLR 36. •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;
2See, again under the previous regime, R v North Yorkshire Cc ex p William Hargreaves (1997–8) 1 CCLR 104, QBD and R v Islington LBC ex p Rixon (1997–8) 1 CCLR 119, QBD. •fails properly to assess the level of direct payments/budget required, or give adequate reasons.
3R (KM) v Cambridgeshire CC [2012] UKSC 23, [2012] 15 CCLR 364. 9.6As in the case of assessments, judicial review usually only succeeds when the claimant establishes a clear breach of the legal parameters: see further chapter 27 below 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 ADR and a statutory appeal procedure – see para
7.97 above),
4See, in particular, R (Ireneschild) v Lambeth LBC [2007] EWCA Civ 243, (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).
9.7The 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 at para
9.6.
9.8One of the clearest duties in this context is the duty to meet needs assessed as being ‘eligible’ but even this duty is not absolutely absolute; not only are local authorities entitled to meet eligible needs in a cost-effective manner,
5R v Kirklees MBC ex p Daykin (1997–8) 1 CCLR 512.where physical resources are not available (eg a suitable care home) the duty is a duty to do everything reasonably possible to locate or create such resources.
6R v Islington LBC ex p Rixon (1997–8) 1 CCLR 119; R v Lambeth LBC ex p A1 and A2 (1997–98) 1 CCLR 336.In addition, the flexibility inherent in the notion of needs at least opens up the possibility that, in some circumstances, a rationally arranged waiting-list could result in assessed needs being met, albeit not straight away, but still lawfully.
7R v South Lanarkshire Council ex p MacGregor (2000) 4 CCLR 188.9.9An interesting feature of social care is, however, that a local authority cannot treat itself as having ‘discharged’ its duty, in the way that, for example, a housing authority can. An applicant may act unreasonably by refusing offers of assistance or by failing to adhere to reasonable conditions, resulting in the service being withdrawn, but a local authority must remain willing to provide a service for which a need continues to exist, if for example the applicant has agreed to mend their ways.
8R v Kensington and Chelsea RLBC ex p Kujtim (1999) 2 CCLR 340.