When needs are not assessed - Elderly Client Adviser

Feature

posted 1 Mar 2000 in Volume 5 Issue 3

When Needs Are Not Assessed

Over the last few months I have encountered a spate of clients who have had difficulties in obtaining an assessment of community care needs either for themselves or the person that they care for. Many individuals are asked at an initial screening stage whether the potential service user has capital over £16,000. If this is affirmed then they are told that the social services department cannot be of assistance to them, as the local authority would provide no services. It follows that the individual has to try to obtain services to fulfill his or her own needs. However, It does appear that social services will become involved in cases where individuals have over £16,000 but no family or carers to assist. As a result of the obstacles encountered by the very nature of an individual,s infirmity, disability or caring role, it often means that they carry on without getting the support service they need.

Assessment of Needs for Community Care Services

Section 47(1) of the National Health Service and Community Care Act 1990 provides that "Where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority:

(a) shall carry out an assessment of his needs for those services; and

(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services."

Section 47(1) means that the local authority has a duty to carry out an assessment wherever there is an apparent need for community care services. These are defined in section 46 and include residential care, assistance at home, day centre provision, respite care and after care for people who have been subject to compulsory detention under the Mental Health Act. Given the range of community care services and the fact that the apparent need does not have to be urgent or immediate, the threshold test is low. Nevertheless the duty to assess is not absolute.

Section 47(1)(b) indicates that, following an assessment, a local authority must make a decision as to whether or not services are required. However the drafting makes it quite clear that discretion exists. As a matter of law, therefore, a local authority has a duty to assess needs, but not necessarily a duty to provide services to meet those needs, or all of those needs.

Since the Gloucestershire case¹ it has been clear that a local authority may lawfully carry out assessments of need and determine levels of service provision by reference to eligibility criteria, which are, essentially, tools for enabling the local authority's resources to be rationed as fairly as possible. It should take into account the current acceptable standards of living, the nature and extent of an individual's disability, and the relative cost of meeting the assessed needs, balanced against the relative benefit of services.

However, once a local authority has established that a person has needs which it is obliged to fulfil under its own eligibility criteria, then it must fulfil them. At that point, lack of resources is no excuse.

Preliminary Screening

It was anticipated, prior to the introduction of the 1990 Act, that local authorities would establish some form of screening process. The Baroness in Waiting, Baroness Blatch, said "Our guidance on assessment will advise local authorities on the advisability of setting up some sort of initial scrutiny. Such a procedure would be quite proper since the Section leaves the form of the assessment to be decided by the local authority. An initial sift would have two purposes. First, to identify the people for whom no more detailed assessment is required, which would include those making unreasonable or vexatious requests; and, secondly, to decide the most appropriate form of assessment for those cases clearly needing further investigation". ²

However such screening is still part of the assessment process and should not be used by local authorities as a means of weeding out potential service users. Given the duty to assess apparent need, any assessment or screening should record basic details about the applicant, including whether there is any carer who may be entitled to an assessment under the Carers (Recognition and Services) Act or whether problems with housing or health indicate that referral to the housing or health authority is needed.

In R v Bristol City Council ex parte Alice Penfold³ the local authority argued that as there was no prospect that it would provide any services for the applicant, it was justified in offering only an informal (screening) assessment. The Divisional Court held that there is no discretion not to carry out a proper assessment, even if the process itself is expensive, and even if, from the resource point of view, identified needs may not ultimately be met. An assessment must fully explore the needs of the applicant, and "may serve a useful purpose in identifying for the local authority unmet needs which will help it to plan for the future. Without assessment this could not be done".

Identifying People In Need

Section 1 of Chronically Sick and Disabled Persons Act 1970 provides "It shall be the duty of every local authority having functions under section 29 of the National Assistance Act 1948 to inform themselves of the number of persons to whom that section applies within their area and of the need for the making by the authority of arrangements under that section for such persons".

Section 29 of the 1948 Act when read with government Circular LAC(93) (10) directs that local authorities have the duty to maintain and compile "classified registers" of disabled persons to whom arrangements for welfare services should be provided. The register has two purposes. The first is for statutory requirements, such as the payment of benefits to visually impaired individuals who are listed on such a register and secondly, it enables local authorities to plan for such provision. As there is no requirement to be registered in order to receive services is not fool proof and therefore not necessarily accurate. However, it can be a useful tool for assessing needs.

As noted, the Penfold case confirmed that it is important for a local authority to assess individuals, even where there is no prospect of their needs being met, so as to have a record of these unmet needs. With limited budgets local authorities must have a method of identifying need so they can set their eligibility criteria realistically. By creating obstacles to an assessment, a local authority is not fulfilling its responsibility under the 1970 Act.

Relevance of the Applicant's Resources

The Policy Guidance has always made it clear that "Assessments of financial means ... should ... follow the assessment of need and decisions about service provision", and it will be unlawful to refuse to carry out an assessment because an individual has resources above a certain level. Local authorities may not fetter their discretion in this way.

Decisions on the ground are not being made solely because of financial concerns, but are probably more to do with over stretched human resources. For those individuals who will be fully funding their care, a local authority will carry out a financial assessment. If the provision is for residential or nursing home care, the service user must pay the cost if he or she has capital above £16,000⁴ As regards domiciliary services much will depend on the extent of the local authority's charging policies⁵. Increasingly, many local authorities are calculating charges for domiciliary care on the same basis as for non-domiciliary care. This being the case, the local authority should not lose out by the provision of those services, as the costs will be fully paid by the service user.

The time taken to facilitate the assistance given to the fully funding service user is a drain on the local authority's resources. With shortages on time and staff, there may be a reluctance by social workers to carry out a needs assessment and produce paperwork when at the end of the day the individual could in theory have accessed services directly, leaving the social worker time to assist service users who will be the financial responsibility of the local authority.

This ignores four things. The first is that very often people turn to social services as a last resort. The role of the social worker may merely be to hand hold but it is one of the fundamentals of social support. Secondly, by not having a proper needs assessment the potential service user may find that when their finances fall below £16,000, that they do not fulfill the local authority's eligibility criteria for the level of care they receive. For example, he or she initially placed him/herself in a nursing home and is subsequently assessed as needing residential care. As a result a move of home may be necessary. How much the new Human Rights Act affects this situation, is sure to be tested.

Thirdly, without an assessment of the potential service user's needs, carers are also missing out on an assessment. Finally, carers and relatives of people suffering from dementia frequently encounter problems in obtaining a bed in an elderly mentally infirm (EMI) unit. The local authority will often negotiate terms with the care home providers so that any available bed is offered to the local authority prior to being offered to any self funding individual. As a result there may be lengthy delays before such people obtain a bed. Many families resort to using nursing home care, which is more expensive than residential care. The effect is that their assets are used up more quickly and in due course when the local authority takes over the responsibility for funding, either the contract with the nursing home has to be renegotiated or alternatively the dementia patient has to be moved to another home.

Individuals who seek early legal advice have the advantage that invariably an assessment takes place or the social worker facilitates some assistance, by giving the client sources of information for help. Unfortunately, there will be a greater number of individuals who carry on regardless with what can be a stressful, risky and at times intolerable situation.

Caroline Bielanska
Solicitor with Longmores
Hertford.