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Feature

posted 24 Jan 2001 in Volume 6 Issue 2

IN PRACTICE: Casenote:
Arthur MacGregor v South Lanarkshire Council
(reported on 15th December 2000 reported at www.scotscourts.gov.uk.)

This case involved a 90-year-old seeking judicial review of a decision of the South Lanarkshire Council. That was as regards delay in providing him with a suitable place in a care home. This time, unlike in the case of Yule (on the subject of liability to pay for care), that particular local authority came off worst. The impact may well be felt both north and south of the border, quite apart from by the other 199 people on South Lanarkshire Council's waiting list. 106 of those were 'bed-blocking' in hospital. A cynic might suggest that local authorities, without any reasonable prospect of clearing their waiting lists, might have been happy with 'bed-blocking'. This case indicates the limitations of the 'waiting list approach'. It may run to appeal, having only reached the Outer House of the Court of Session so far. South Lanarkshire Council may well rue the day it became so involved in litigation involving older people. The law is not a one-way street

Before the present result was obtained, 140 applications for judicial review were made by different people in the same position as Mr MacGregor. The others were settled by the 'would-be resident' before a hearing took place. The situation became so extreme that the author understands the Scottish Legal Aid Board wrote to one authority pointing out that it may be guilty of vexatious litigation at public expense in allowing cases to be brought! It has always been uncertain as to what the situation is when a person has been 'needs assessed' under Section 47 of the National Health Service and Community Care Act 1990 (NHSCCA) as needing care but the local authority just places him or her on a 'waiting list.' There was much debate on the issue of the link between needs assessment and the financial resources of local authorities. That culminated in R v Gloucestershire Council ex parte Barry (1997) 1 CCL Rep 40. That confirmed that the use of 'eligibility criteria' for community care is acceptable. Local guidelines can be put in place to enable cash-strapped authorities to create 'costs:benefits' style tests for priority cases. The higher the risk the greater the likelihood the need of the older person will be met. That case highlighted this unwelcome aspect of postcode rationing. There are limits to that quite apart from the possible Human Rights Act implications yet to be explored by the courts. As regards the inadequacy, or illegality of residential care budgets the best exposition is contained in a letter from the Chief Executive of Dundee, probably quoting counsel:-

"The key to whether an authority is acting illegally is not going to be whether the budget meets or does not meet the entitlement to assessed care needs, but whether the budget has been set, knowingly and deliberately, at a level that is known to be inadequate, with the result that it is obvious when setting the budget, that at least some people assessed as needing this form of care will have to have it refused simply on the basis of arithmetic. This is primarily because an authority's policy for prioritising need (and it is accepted by the courts that such prioritisation may be required) must not operate so far as to fetter the local authority's discretion in taking account of individual or exceptional circumstances. It would seem likely that a budget which was adequate to meet all the assessed needs in the highest priority cases would be sufficient to allow the authority to exercise its discretion and therefore would not be illegal." (Response to Federation of Small Businesses -FSB- survey 1998)

The Social Work (Scotland) Act 1968 (as amended by the NHSCCA) under Section 12A requires local authorities in Scotland to effect needs assessments as a prerequisite to care provision. That mirrors the English law Section 47 on needs assessments with virtually the same wording. Section 12A was at issue in the MacGregor case.

What about cases where a person clearly needs care, indeed has been formally assessed as needing care, but they simply do not get it as they are simply told there is no money available and they will have to wait?

On July 3 2000 South Lanarkshire Council effected a section 12A needs assessment on Mr MacGregor ('Mr M'). A formal 'care plan' was drawn up on the 7th of July and approved.

It took account of the extreme age of the applicant, his poor memory, limited mobility, confusion, need for 24-hour supervision, agitation, wandering, deafness and inability to dress and generally look after himself. 'Secure' nursing care was required.

The applicant's son was told there was a 7-8 month waiting list before public funding would be available. The applicant had no means to pay for care in the meantime for the purposes of the local authority 'means-test.' However, he and his family started to pay for care at the end of June 2000. They could not continue. Judicial review was sought.

There is no indication as to whether or not the issues relating to the availability of free care under the Coughlan case (1999 2 CCLR 285) were seriously addressed at any stage. The author would suggest they may have been relevant given the nature of the needs. That is perhaps another story. It may just have been felt simplest to use judicial review.

The issues before the Court were stated as; "whether the respondents [the council] have acted ultra vires in placing the petitioner [Mr M] on a waiting list in a purported fulfilment of their statutory duties towards persons in their area..." and "whether a local authority owed a specific duty to particular individuals, as opposed to the community at large, in relation to community care and whether, and if so at what stage resources available to a local authority should be taken into account in assessing and meeting the needs of individuals for community services within its area."

The legal discussion

Local authority plans to meet needs in general are, according to Lord Hardie, just that and cannot give a certain person enforceable rights. But; "If the current community care plan of the respondents does not reflect the current waiting list of 199 people, the respondents should give urgent consideration to modifying the plan [in accordance with its general duties]." Clearly a total failure must be in breach of the law and the council auditors and the Secretary of State may be expected to intervene.

Section 12A (and by analogy Section 47) create "a duty to individuals to provide community care services to such individuals in appropriate cases [after needs assessment]". Lord Hardie added: "I am of the opinion that once a local authority has determined that the needs of an individual in their area require the provision of particular community care services... and that his or her needs cannot be met in any other way, even on the short to medium term, the effect of Section 12 [and by analogy Section 47] is to impose a duty on the local authority to provide the necessary assistance to satisfy the individual's needs. In short the local authority must find a place in a residential nursing home for the individual in such circumstances." These duties are mirrored by enforceable rights.

Can a local authority take account of its resources and just place a person on a waiting list in purported discharge of its obligations? When undertaking a needs assessment local authority resources are, as Lord Hardie stated, 'irrelevant'. This rather re-affirms the situation which community care specialists assumed existed.

But, if a person needs care then "the resources available to an individual are relevant at this stage of the assessment because if an individual has adequate resources to provide for his or her needs, there would be no need for the local authority to provide community care services at public expense." Thus although the resources of a local authority are irrelevant at the stage of needs assessment the resources of the individual are not. This rather follows the cases of ex parte Barry and Robertson v Fife Council (12th January 2000 www. Scotscourts gov.uk) If a person can pay in accordance with the normal means test criteria then that will be taken into account.

But when it actually comes to the crunch, where assessed needs meet resources and the would be resident cannot pay, what can a cash strapped authority do? "While I consider that the availability of resources to the local authority is a relevant consideration [at the stage of actually effecting care] I do not consider that it is an option for the local authority to determine to take no action meantime on the basis that the local authority does not have the available resources to fund a place..." Further, "... even if the respondents were unable to provide the petitioner with what might be considered the optimum care of a residential nursing home, they were under a duty to consider what resources were available within their area to enable the petitioner to be cared for... doing nothing is not an option for the local authority." Thus whatever the problems it might bring some provision must be made by a local authority even if no cash is available. The decision to do nothing is ultra vires. Waiting lists are banned so far as the waiting is for everything.

This position is reinforced in the Charging for Residential Accommodation Guide amendments (11) which restated the Department of Health policy of a duty to place with a degree of immediacy once a need is accepted as existing. Interestingly the latest Social Services Inspectorate review of Cumbrian services noted that an eight-week delay was too long.

His lordship declared that the local authority had acted ultra vires in failing to provide Mr M with nursing home care. He also remitted the case back to them requiring them to 'make the necessary provision of residential nursing home care.' But he did not order the local authority to make provision in the specific home in which he was living. Presumably a claim could be made against the council for home fees expended through mistake of law on the part of the council but that is not made clear. That was not strictly the role of the court in the judicial review of the decision itself.

In summary the author would suggest:-

Needs assessments are not to be resource based. This important judgement reaffirms that where a person is being needs assessed then that needs assessment must be free of any thought on the part of a local authority as to how it will actually pay for what may be needed.

Needs assessed must be met to some extent without delay. If a person is assessed as needing residential care (of any sort) then:-

It is submitted that placing that person on a waiting list for their assessed care need to be met without making any provision to meet it in the meantime is not lawful.

It is submitted that some form of that assessed care need, even if not up to the individual 'specification' in the relevant care plan, must be provided through the local authority. For example residential care may be given short-term to help a person in need of nursing care. That is so long as that person could not be expected to pay for their care as a result of means-testing. In the case of a person over the means-test threshold then care would be 'otherwise available' to them and they would not have an entitlement to care provided by the local authority until they fell below that threshold. It is hard to see how this case will, in itself, help reduce 'bed-blocking' by potentially self-funding residents. It also begs the question as to whether or not a residential care home can take on board those assessed as needing nursing home care. The author would submit they cannot unless they are dual registered.

It is submitted that the provision of some of the care assessed as being needed must necessarily be effected through a local authority without any unreasonable delay by the local authority. Otherwise a 'waiting list' could be imputed by the court even if there was not an 'official' waiting list.

The nature of allowable 'waiting lists' for assessed care needs is affected:-

• Waiting lists for care, at the level of specification detailed in the needs assessment, must take account of relative needs of those people on the list. This is a little fine tuning of the ex parte Barry case referred to above. A simple "We have run out of money and can do nothing at all for you for now" will simply not suffice.
• Although an individual may not be able to challenge a budget as such local authorities who roll their residential care waiting lists on from year to year may possibly be challenged as setting illegal budgets. That would be via the council auditors and the Secretary of State. They may have deliberately under-budgeted to such a degree that they have effectively committed an 'offence' which is analogous to an individual deliberately depriving himself of assets with a view to a saving on home fees. There is unfortunately no obvious penalty for such 'deliberate deprivations' on the part of an offending local authority.

Judicial review is inadequate:

Judicial review remains a rather inadequate remedy for the aggrieved person especially if that person or their family are still left rather

out of pocket.

Resident/carer choice is not treated seriously enough:

In the case report the issue of choice of accommodation is left, rather more than one might like, to the paying local authority. Lord Hardie's cmments do not appear to fit too easily with the earlier 'choice' directives of the Secretary of State for Health. It is suggested this was just an oversight rather than an indication of principle.

Delays are likely in making needs assessments:

One wonders if the above will create delays in needs assessments being carried out and an undue emphasis upon who is and who is not able to fund themselves. Some local authorities might seek to 'delay the evil day'. There appears to be at least anecdotal evidence for this.

'Halfway house' care may become 'journey's end':

One wonders if care provided, which is substandard in relation to the individuals needs, will ever be brought up to standard? Could this case prove to be a 'let out' provision for local authorities rather than an advantage to residents? For how long is a 'halfway house' acceptable?