Feature

posted 9 Oct 2002 in Volume 7 Issue 6

Fair access to care services

The Department of Health has published the final version of its guidance for councils managing access to care services, in the hope that it will remedy the national variations that have been experienced to date. In this article, Caroline Bielanska, solicitor, TEP and freelance consultant, examines the latest guidelines and assesses how far they will solve the problems in care service funding and distribution.

The Department of Health has issued the final version of the local authority circular Fair Access to Care Services¹, which gives guidance to councils with social services responsibilities on how they may achieve fair access to care services through reviewing and revising their eligibility criteria for adult social care services. The circular should be read in conjunction with both the policy and practice guidance issued in July². The mandatory³ guidance must be followed by 7 April 2003, a year later than originally planned⁴. The need for national guidance was identified in the 1998 White Paper, Modernising Social Services, as different councils use different criteria and reviews of eligibility, which has lead to national variations and at times unfairness. In addition some councils use different or stricter criteria for certain groups of adults who request help.

Needs assessments

It is fair to say that the application of this guidance is only as good as the quality of the assessment undertaken and so the starting point for the adviser is to have full details of the assessment. Anyone for whom the local authority may have to provide services is entitled to an assessment of their needs for community care services⁵ and the threshold for appearing to need an assessment is low⁶. Councils should not turn people away without their needs being identified nor should they declare they do not help certain groups of people, such as those with Asperger Syndrome. In accordance with the single assessment process⁷, the nature and detail of the assessment should be proportionate to the presenting needs. This is to ensure that those seeking help are dealt with effectively and that there is no unnecessary duplication of information.

Professionals should explore the intensity of the presenting needs and the instability and predictability of problems. They should consider any external and environmental factors that have caused or exacerbated the difficulties and the number of different needs faced by the individual, how those needs interact and how the individual copes with those problems. The aim is for the potential service user to be subject to only one decision as to whether they qualify for services based on a national framework⁸. For example, at the present time, in some areas of the country it is possible for a person to have to fulfil one set of criteria for meals on wheels and another for personal care. In the future only one decision needs to be made, that is, does the person qualify for help in accordance with the criteria?

Although potential service users should be given an estimate of the waiting time to be assessed, many are given no time scale and can be left in limbo for months⁹. This is unacceptable and can be seen as tantamount to being denied fair access for services. Plans have been announced to rectify this situation. Health Secretary Alan Milburn announced in July, that by the end of 2004 initial assessments should begin within 48 hours and be completed within one month. The time scale coincides with the date set for the single assessment process being fully operational.

The framework

The framework for each council to follow is graded into four bands, based on the seriousness of the risk to independence if problems and issues are not addressed. The aim is to adopt a preventative approach. However, in practice most councils are concerned with present needs rather than preventing needs arising. This was highlighted recently in the case of Abdul Wahid¹⁰, where the Court of Appeal confirmed that the council did not have a legal duty to provide accommodation to Mr Wahid under section 21 National Assistance Act 1948, as Mr Wahid was not presently in need of care and attention that was otherwise available. This was despite the council accepting that Mr Wahid could not continue to live in his current home without it causing a deterioration of his mental health. It would appear that a broad view would have to be taken by the assessor and consideration of the interaction between different needs¹¹. Where a person has moderate needs but if they do not receive help they will very quickly have substantial needs, the local authority may assist.

Councils have to adopt four bands in applying their criteria. They should not vary the wording by deleting or amending any of the elements¹². They can however, add to the elements contained within the bands, such as adding more risk factors, but they must ensure they clearly relate to the key factors of independence, which are autonomy, health and safety, management of daily routines and involvement in family and wider life.

Prior to the consultation process the bands, were much wider as outlined below:

The critical band

Life is or could be threatened;
Major health problems have developed or are likely to develop;
There is, or could be, an extensive loss of choice and control over the immediate environment;
Serious forms of abuse or neglect have occurred or are likely to occur;
There is, or could be, an inability to carry out many personal care, domestic family or other daily routines;
Involvement in work, education pr learning is, or could be, at great risk;
Individual’s cannot undertake, or will be unlikely to be able to undertake, most of the family ands social roles and responsibilities that are important to others.

The substantial band

Significant health problems have developed or are likely to develop;
There is, or could be, some significant loss of choice/control over the immediate environment;
There is, or could be, an inability to carry out some personal care, domestic or other daily routines;
Involvement in some significant aspect of work, education or learning is, or could be, at risk of not being sustained;
Some significant social support systems and relationships are, or could be, at risk;
Individuals cannot undertake, or will be unlikely to be able to undertake, some significant family and social roles and responsibilities that are important to them and others.

The moderate band

There is, or could be, some inability to carry out several daily routines;
Several aspects of work, education or learning are, or could be, at risk of not being sustained;
Several social support systems and relationship are, or could be, at risk;
Individuals cannot undertake, or will be unlikely to be able to undertake, several family and social roles and responsibilities.

The low band

There is, or could be, some inability to carry out one or two daily routines;
One or two social support systems and relationships are, or could be, at risk of not being sustained; or
Individuals cannot undertake, or will be unlikely to be able to undertake, one or two family and social roles and responsibilities.

After the consultation a much stricter wording applies. The criteria now appears concerned with definite existing or potential problems. Speculative potential problems are not covered. The new wording is as follows:

The critical band

Life is or will be, threatened;
Significant health problems have developed or will develop;
There is, or will be, little or no of choice and control over the vital aspects of the immediate environment;
Serious abuse or neglect has occurred or will occur;
There is, or will be, an inability to carry out vital personal care or domestic routines;
Vital involvement in work, education or learning cannot or will not be sustained;
Vital social support systems and relationships cannot or will not be sustained;
Vital family/social roles and responsibilities cannot or will not be undertaken.

The substantial band

There is, will be, only partial choice and control over the immediate environment;
Abuse or neglect had occurred or will occur;
There is, or will be, an inability to carry out the majority personal care or domestic routines;
Involvement in many aspects of work, education or learning cannot be sustained;
The majority of social support systems and relationships cannot, or will not be sustained;
The majority of family and other social roles and responsibilities cannot or wilI not be undertaken.

The moderate band

There is, or will be, an inability to carry out several personal care or domestic routines;
Involvement in several aspects of work, education or learning cannot, or will not be sustained;
Several social support systems and relationships cannot, or will not be sustained;
Several family and other social roles and responsibilities cannot or will not be undertaken.

The low band

There is, or will be, an inability to carry out one or two personal care or domestic routines;
Involvement in one or two aspects of work, education or learning cannot or will not be sustained;
One or two social support systems and relationships cannot or will not be sustained;
One or two family and other social roles and responsibilities cannot or will not be undertaken.

Change in terminology

The most significant change in the guidance post consultation has been the adoption of new terminology. For years we have been lumbered with the concept of ‘assessed needs’ and there is now a clear distinction (which is representative of what happens in practise) between presenting and eligible needs. ‘Presenting needs’ are the issues and problems that are identified when adults contact or are referred to social services for assistance. ‘Eligible needs’ are those needs that are assessed as falling within a council’s eligibility criteria, which they have a duty to fulfill.

The use of the words ‘critical’ and ‘vital’ can be seen as rendering the criteria as subjective and so a degree of common sense should apply. Where the criteria is not objectively applied then practitioners should consider a review through the council’s complaints procedure, liaising with the legal department and if all else fails, challenging the final decision by judicial review on the grounds of their unreasonableness.

Councils are not compelled to use all four bands when setting their criteria as they can draw a line as to what needs they will meet as they are entitled to take into their own financial situation in setting criteria¹³. This is provided the budget set is legal in the first place. If the council has set illegal budgets and are not fulfilling the eligible needs that they are under a duty to provide, this can be attacked through the judicial review process¹⁴.

Determining eligibility

Once the assessment has taken place and the evidence has been recorded, it should be evaluated against the risks to the individual’s autonomy, health and safety, ability to manage daily routines and involvement in family and wider community life. Through identifying the risks that fall within the eligibility criteria it should be possible to identify eligible needs.

Reviews

The Department of Health has placed importance on the role of reviewing and revising eligibility criteria and to review service users at regular intervals.

Councils should review their criteria at least annually but more often if there is a significant change in circumstances or resources, which means they are unable to provide assistance at the same level.

The individual should be reviewed initially after three months and thereafter annually unless their circumstances alter significantly. Reviews of the individual should:

Establish how far the services provided have achieved the outcomes, set out in their care plan;
Re-assess the needs and circumstances of the individual service user;
Help determine the individuals’ continued eligibility for support;
Confirm or amend the current care plan or lead to closure;
Comment on the effectiveness of direct payments, where appropriate¹⁵.

Anticipated problems with the framework

Although there appears to be a hierarchy of needs within each band, with the exception of ‘life threatening circumstances’ in the critical band, it is not the intention that this is the case. For example, critical risks to the independence faced by an older person who is unable to perform vital personal care tasks such as washing and bathing should be given equal weight to a younger person who is facing significant obstacles in taking up education and training that is fundamental to his independence and well-being¹⁶.

Despite the good intentions, it is hard to see how an assessor will not place less weight on problems in accessing work and education, over problems with health, safety, abuse and inability to carry out daily routines. However, failure to take a holistic approach could have an impact on the individual’s independence and have a knock-on effect on their physical and mental health needs. Where the individual has a range of needs, some of which are eligible and some which are not, the council only has to meet the eligible needs. However, it may be that services are provided to meet the presenting needs as a consequence or to facilitate eligible needs being met.

In practise, it is likely that potential service users will not have their needs met if those needs fall within the lower bands due to resource limitations. If a council decides it only has sufficient resources for needs falling within the critical and substantial bands then the council’s eligibility criteria will simply comprise of those bands¹⁷.

Where councils do not have the resources to meet all the needs that would fall within one of the bands, they may split the band into ‘greater’ or ‘lesser’ sub-bands¹⁸. This is despite councils being told not to alter the wording of the framework and each element within the band being given equal weight.

Commissioning services

Councils have been told to ensure that services are in place to meet the eligible needs. From April 2003, the government has increased social services funding by an average of six per cent per year over and above inflation. How far the money will stretch we wait to see. The intention is that it should be used in part for the following:

Paying higher fees to care homes to stabilise the care home sector;
Increasing intensive home care packages;
Increasing care home beds;
Increasing rehabilitation packages;
Providing more free community equipment such as grab-rails, hoists and ramps;
Providing more respite care and breaks for carers.

Councils should not adhere rigidly to budget headings for specific services, which prevent resources moving from one heading to another. Councils are allowed to take into account their resources, not on whether they meet the eligible needs but on how they meet those needs. They are allowed to meet the eligible needs in the most cost-effective way but must not operate inflexible upper-cost parameters¹⁹ for care packages.

Falling outside the criteria

If the individual has been in receipt of services for a period of time but after a review of their needs it appears they no longer fall within the criteria the council will have to adopt a cautious approach before reducing or removing those services. Particularly if it is not practical or it will bring about a worsening of the individual’s needs or increase the needs and consequently his independence is undermined²⁰.

How it fits in with health care

As the framework for determining eligibility focuses on risk to independence, which includes health risks, it is suggested the guidance be a starting point for setting criteria for packages of continuing health and social care²¹. The responsibilities for the provision of such services were meant to be agreed by health authorities and social services by 1 March this year²². As this guidance is not mandatory on the health authority the starting point must be the acceptance of responsibility. This can in itself cause problems in particular where health care at home is intensive.

Help for carers

It is clear from the wording of the bands detailed above that the guidance focuses on those adults seeking help for themselves and is not geared towards carers. It would appear by the strict wording of the critical and substantial band that the care situation would have to break down or be on the point of such before the carer would obtain support. Essentially it must be shown that vital or the majority of social support systems and relationships cannot or will not be undertaken or sustained. This must be read in conjunction with the framework of the Department of Health guide to carer’s assessments²³ where the focus is on the carer’s needs and the sustainability of the caring role. It does not however provide a true framework²⁴. It sets out issues that need to be considered. However, if a carer is not coping with one aspect of care it may have an impact on another element of the band, perhaps so that independence and safety are compromised and support care is arranged. The interaction between the elements is vital for carers to be able to get the support they need.

Is the guidance fair?

The guidance is fair in so far as it provides for just one set of eligibility criteria and one decision being made but with regional variation in resources and expenditure, local councils will make their own decisions as to what they will cover. As a consequence, the guidance does not lead to a situation whereby similar decisions about eligibility are made for individuals with similar needs but living in different parts of the country. Within a council area, if applied objectively, individuals with similar needs should receive similar decisions on their eligibility for social care. As councils set their own budgets for social care for which they are accountable to the electorate there will still be national variations. As such the postcode lottery for social care still remains.

Reference:

LAC (2002) 13
All guidance can be obtained by going to www.doh.gov.uk/publications.
The Guidance is issued under s7(1) of the Local Authority Social Services Act 1970.
Draft policy guidance- August 2001
s 47 NHS and Community Care Act 1990
R v Bristol City Council ex parte Alice Penfold [1998] 1 CCLR 315
LAC (2002)1
LAC (2002) 13
See “Better Care Higher Standards Charter” Department of Health 2001
R v Tower Hamlets LBC ex parte Abdul Wahid [2002] EWCA Civ 287
Pars 22 & 37 Policy Guidance
Page 2 Practice Guidance
R v Gloucestershire County Council ex parte Barry [1997] 2 All ER 1
See McGregor v South Lanarkshire Council as an example of the Council not fulfilling eligible needs [[2000] www.scotslaw.gov.uk/opinions
Par 58 Policy Guidance
Page 2 Practice Guidance
Page 3 Practice Guidance
Page 4 Practice Guidance
Par 51 Policy Guidance
Par 65 and 66 of the Policy Guidance
Par 7 Policy Guidance
LAC (2001) 18
The Carers and Disabled Children Act 2000: a practitioners guide to carers’ assessments” Department of Health 2001
www.carers.gov.uk.

Caroline Bielanska, Solicitor, TEP, lecturer and freelance consultant. She can be contacted on caroline.bielanska@ntlworld.com