England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 June 2004

Mr Justice Collins:

1. . The claimant is nearly 47. He is severely disabled, suffering from Still's Disease and being in addition almost totally blind. Still's Disease is a type of juvenile rheumatoid arthritis characterised by high spiking fevers. It has in the claimant's case resulted in the need to replace both his hips and his knees. Three of those replacements are now beginning to fail and further operations are likely to be necessary. Flare-ups regularly occur and these produce severe pain which can be alleviated to a degree by injection of steroids. The flare-ups can be major resulting in pain which is so severe that it can make the claimant vomit and be unable to do anything for himself for up to 24 hours. These major flare-ups have been increasing in frequency in recent months. He had only had some 3 or 4 such episodes in 2003, but the assessment in February 2004 upon which the defendant has based the amount of care to be provided supposes a major flare-up every 3 weeks. Minor flare-ups render the claimant unable to carry out activities such as washing, dressing or lifting objects for a few hours.
2. . It is an important aspect of his condition that the claimant should be able to plan his activities. Rest is important. Stress can produce flare-ups and there are good and bad days. Doing too much on a good day can produce a bad day. The claimant says that his condition has deteriorated. His blindness adds immensely to his difficulties. For example, he used to be able to administer injections of steroids, which were prepared and stored in his refrigerator, by himself. Now he must summon assistance and so he is more likely to suffer more severely and for a longer time when a flare-up comes because the assistance may not materialise quickly enough. Further, the Still's Disease makes him more liable to drop or spill things and this can create dangers because of his inability to see them. In addition, his mobility is affected and he is liable to fall.
3. . His disabilities mean that the claimant falls within the provisions of section 29 of the National Assistance Act 1948 and section 2 of the Chronically Sick and Disabled Persons Act 1970 so that the defendant must provide assistance for him. That assistance should be such as will enable the claimant to live in the community (see National Health Service and Community Care Act 1990 section 47 which requires local authorities to assess the needs of those such as the claimant for community care services). Section 7 of the Local Authority Social Services Act 1970 requires local authorities in the exercise of any discretion conferred by any relevant enactment, to act under the general guidance of the Secretary of State. The purpose behind this is to produce a uniformity of approach by local authorities so that there is consistency and so fairness in the delivery of social services.
4. . For some time, the claimant through his solicitors has been complaining to the defendant that the level of care provided has been insufficient. In February 2001 the hours of care were reduced from 14 to 8 per week. When correspondence failed to produce any change, a formal complaint was made in November 2001 and details were given of what the claimant regarded as necessary. At a hearing before a Complaints, Review Panel, the claimant's case was that he needed 14 hours a week community care and direct payments to enable him to arrange when such care should be provided. The Panel recommended a reassessment and in October 2002 his care was increased to 11 hours per week. As the claimant's condition deteriorated, it became clear that the care was insufficient and further correspondence ensued. In July 2003 he was given an extra 7½ hours by what is called the Supporting People Panel. This is provided from funds available to the defendant from Central Government and covers such things as practical support to go shopping, to deal with correspondence and to go out for various purposes.
5. . In July 2003 the claimant obtained a report from an organisation called Personal Care Consultants (PCC), whose managing director is one Christopher Wall. The assessment was in fact carried out by one of his assistants who is highly qualified in her field. This indicated that much more support was needed and in October 2003 it was said that the cost of providing the necessary care would exceed the amount (£200 per week) needed to trigger assistance from the Independent Living Fund (ILF). The ILF is a government fund which will pay an amount up to £715 per week. If the cost is higher, it will have to be borne by the defendant or residential care will have to be considered.
6. . On 14 November 2003, these proceedings were commenced. What was then claimed was an up-to-date assessment of the claimant's needs and a new care plan to meet them and the provision by the defendant of adequate care. The claim was based on the information provided by PCC, together with reports from various doctors who had been treating the claimant. The claimant in his statement asserted that he needed at least 37 hours of care each week.
7. . It is important to note that his needs included support to enable him to attend medical appointments. He has to attend the dentist frequently because his illness caused his teeth to rot. He regularly has to go to London to Moorfields Eye Hospital for treatment in an attempt to save him from total blindness. Sadly, the attempts seem to be failing. He has severe glaucoma secondary to uveitis. He is completely blind in his right eye and his left can hardly do more than detect that it is light, if there is a strong illumination. There is thus no effective vision. Whether or not the frequency of the visits to Moorfields will abate is not entirely clear on the evidence before me but a letter of 13 February 2004 from Moorfields suggests they will. They have been taking place at the rate of at least one a week. They have involved him leaving his house at 4.30 am and the long day and stress involved have been detrimental to his Still's disease. Since it has generally not been practicable to have a carer to help him get ready for his trips, he has tended to sleep in his clothes so as to be ready to leave without having to dress.
8. . The claimant made a second statement dated 26 February 2004. In it he described the deterioration of his condition: in particular his flare-ups, both major and minor, were becoming more frequent. He referred to a number of specific incidents when accidents had occurred causing him injury. He said he needed a carer on hand to supervise him and to be able to act if difficulties suddenly arose. He said that he urgently required an increase in his carer hours to 27 – 30 hours per week, but that a proper assessment would show that he needed a live-in carer or carers that lived locally to cover in case of emergency as Mr Wall had advised. He also said that he had missed many health appointments because he had insufficient hours care to use it for such appointments.
9. . Medical appointments are the responsibility of the relevant NHS Trust or the hospital and sums provided for care are not intended to cover them. This has not hitherto been properly appreciated by the claimant or those advising him, including, it would seem, the experts. As recently as 21 April 2004 there was a report from the Chronic Pain management experts stating that in their view an additional 9½ hours care was needed (above the 24½ hours the claimant was by then receiving) together with extra time to cover medical visits and visits to Moorfields and elsewhere for specialist treatments. But, in fairness to the claimant, there still seems to be some doubt about what precisely is to be covered by the medical funds. Preparation for travel as opposed to travel itself may not be covered. It is essential in my view that the claimant's advisors and the defendant ascertain precisely what is to be covered and by whom and ensure that the claimant not only knows what he should get but actually gets it.
10. On 16 February 2004 the defendant carried out a fresh assessment. This led to an increase of care to 24 ½ hours a week of which 7½ hours was provided from the Supporting People Fund (SPF). This action meant the claim had to be amended or withdrawn. It was amended by means of supplementary grounds lodged on 23 April 2004. Those assert that the method of assessment is flawed in failing properly to apply the guidance issued by the Department of Health under s.7(1) of the Local Authority Social Services Act 1970 which provides:-

"Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State".

The guidance is contained in Circular LAC (2002) 13 under the heading Fair Access to Care Services (FACS). It is also alleged that, if the guidance was properly applied, the result is irrational and the defendant could not reasonably have allowed for the provision of only 24½ hours of care. It was far too little, largely because it did not adequately provide for the inevitable emergencies which would arise or for the flare-ups which would occur. It was insufficiently flexible.

11. The guidance commences with what is called an 'Overview'. This establishes a distinction between 'presenting needs ' and 'eligible needs'. This is explained in Paragraphs 2 and 3 which read: -

"2. A fundamental aspect of this guidance is for individual councils to make only one eligibility decision with respect to adults seeking social care support; that is, whether they are eligible for help or not. This decision should be made following an assessment of an individual's presenting needs. Councils should not operate eligibility criteria for specific types of assessment; rather, the scale and depth of the assessment should be proportionate to the individual's presenting needs and circumstances. Neither should councils operate eligibility criteria for different services to meet eligible needs. The most appropriate and cost-effective help should be determined by matching services to eligible needs through the use of statements of purpose.

3. Councils should assess an individual's presenting needs, and prioritise their eligible needs, according to the risks to their independence in both the short- and longer-term were help not to be provided. Councils should make changes in their practices to take a longer-term preventative view of individuals' needs and circumstances. With regard to their resources and other local factors, councils should focus on those in greatest immediate or longer-term need".

The manner in which the distinction is to be identified is dealt with later in the guidance. Essentially, the correct assessment of the needs which an individual has and which can be described as his presenting needs is the key to the whole exercise. Those presenting needs must be fully explored so that their extent is properly understood and evaluated. Paragraph 40 summarises what is required thus: -

"As presenting needs are fully described and explored, the individual and professional should consider and evaluate the risks to independence that result from the needs both in the immediate and longer-term. This evaluation should take full account of how needs and risks might change over time and the likely outcome if help were not to be provided. The evaluation of risks should focus on the following aspects that are central to an individual's independence:

Autonomy and freedom to make choices

Health and safety including freedom from harm, abuse and neglect, and taking wider issues of housing and community safety into account.

The ability to manage personal and other daily routines

Involvement in family and wider community life, including leisure, hobbies, unpaid and paid work, learning and volunteering".

The guidance goes on to consider how eligible needs should be determined following an assessment. I should cite Paragraphs 42 to 44 which deal with this. They read: -

"42. Eligibility for an individual is determined following assessment. As part of the assessment, information about an individual's presenting needs and related circumstances is established, and should be recorded. This information is then evaluated against the risks to his/her autonomy, health and safety, ability to manage daily routines, and involvement in family and wider community life. Councils may wish to facilitate the risk evaluation by asking their professionals to identify risks using the framework in paragraph 16 above. These identified risks to independence will then be compared to the council's eligibility criteria. Through identifying the risks that fall within eligibility criteria, professionals should identify eligible needs.

43. Once eligible needs are identified, councils should meet them. However, services may also be provided to meet some presenting needs as a consequence of, or to facilitate, eligible needs being met.

44. The determination of eligibility in individual cases should take account of the support from carers, family members, friends and neighbours which individuals can access to help them meet presenting needs. If, for example, an individual cannot perform several personal care tasks, but can do so without difficulty with the help of a carer, and the carer is happy to sustain their caring role in this way, both currently and in the longer-term, then the individual should not be perceived as having needs calling for community care services. That is, they should not be perceived as having eligible needs. However, during the actual assessment, no assumptions should be made about the level and quality of such support without the agreement of the relevant parties. Even where carers and others are providing support to an individual, the nature of the individual's needs, and the level of care, could be such as to make the individual eligible for community care services".

12. In order to identify eligible needs, eligibility criteria are set. The guidance sets out a framework which must be used 'to describe those circumstances that make individuals, with the disabilities, impairments and difficulties [identified in the relevant Acts] eligible for help'. The eligibility framework is said to be 'based on the impact of needs on factors that are key to maintaining an individual's independence over time'. I need to set out Paragraph 16, which contains the eligibility framework. It reads: -

"The eligibility framework is graded into four bands, which describe the seriousness of the risk to independence or other consequences if needs are not addressed. The four bands are as follows: -

Critical – when

– life is, or will be, threatened; and/or

– significant health problems have developed or will develop; and/or

– there is, or will be, little or no choice and control over vital aspects of the immediate environment; and/or

– serious abuse or neglect has occurred or will occur; and/or

– there is, or will be, an inability to carry out vital personal care or domestic routines; and/or

– vital involvement in work, education or learning cannot or will not be sustained; and/or

–vital family and other social roles and responsibilities cannot or will not be undertaken.

Substantial – when

– there is, or will be, only partial choice and control over the immediate environment; and/or

– abuse or neglect has occurred or will occur; and/or

– there is, or will be, an ability to carry out the majority of personal care or domestic routines; and/or

– involvement in many aspects of work, education or learning cannot or will not be sustained; and/or

– the majority of social support systems and relationships cannot or will not be sustained; and/or

– the majority of family and other social roles and responsibilities cannot or will not be undertaken.

Moderate – when

– there is, or will be, an inability to carry out several personal care or domestic routines; and/or

–involvement in several aspects of work, education or learning cannot or will not be sustained; and/or

–several social support systems and relationships cannot or will not be sustained; and/or

– several family and other social roles and responsibilities cannot or will not be undertaken

Low – when

– there is, or will be, an inability to carry out one or two personal care or domestic routines; and/or

– involvement in one or two aspects of work, education or learning cannot or will not be sustained; and/or

– one or two social support systems and relationships cannot or will not be sustained; and/or

- one or two family and other social roles and responsibilities cannot or will not be undertaken".

Paragraphs 17 and 18 are also material. They read: -

"17. In constructing and using their eligibility criteria, and also in determining eligibility for individuals, councils should prioritise needs that have immediate and longer-term critical consequences for independence ahead of needs with substantial consequences. Similarly, needs that have substantial consequences should be placed before needs with moderate consequences; and so on.

18. In setting their eligibility criteria councils should take account of their resources, local expectations, and local costs. Councils should take account of agreements with the NHS, including those covering transfers of care and hospital discharge. They should also take account of other agreements with other agencies, as well as other local and national factors".

Resources can be taken into account in particular in determining which of the four bands a council will choose to fund. Sheffield has decided to limit its support to needs falling within the first two bands, that is to say critical and substantial.

13. In March 2003 the Department of Health issued a document which gave answers to the 'most commonly asked questions about the policy guidance'. The relevant ones for the purposes of this case are Q3.1 and Q3.12. 3.1 reads: -

"Q3.1 Is the eligibility framework in paragraph 16 of the guidance to be used as a guide to local eligibility criteria, or should it be strictly followed word for word?

A (amended). The eligibility framework is not merely a guide, and councils should not vary the wording. Once a council decides where to draw the line, subject to the resources it has allocated to adult social care, it should use the exact wording of the bands given in paragraph 16 of the FACS policy guidance to describe the risks from which eligible needs will be identified and met. Whereas councils should not delete or amend the current wording, they may add additional risk factors as extra bullet points within a band. If doing so, councils should ensure the additional points reflect the spirit of the guidance and clearly relate to the key factors of independence – autonomy, health and safety, management of daily routines and involvement in family and wider life.

Councils that are considering setting out their eligibility criteria in matrices or other ways that depart from the straightforward approach and wording of paragraph 16 should consider the merits of such plans and, if they proceed, should retain the original wording".

3.12 is somewhat more detailed. It reads:-

"Q3.12 (new) What counts as an eligible need? Is it the person or the need that is eligible for help?

The question and answer lie at the heart of how FACS-based eligibility criteria, and related assessments and evaluations of risk, should work. The key paragraph from the policy guidance is paragraph 42, which spells out the logic of how to go from the assessment to a determination of eligibility. Basically, paragraph 42 says that presenting needs should be explored, and evaluated against risks to independence.

In doing so, councils should always bear in m ind that needs assessment and risk evaluation rely for their quality on person-centred conversations with individuals seeking help carried out by competent professionals prepared to exercise their judgment. Frameworks, case examples and the like can only ever support the exercise of person-centred, competent judgment.

Once needs and risks are identified, the risks are then branded as critical, substantial, moderate or low. For an individual, different sets of needs can pose different risks and hence be banded differently. The individual's risks, and the band(s) they fall into, are then compared to the council's eligibility criteria. The final sentence of paragraph 42 than says that through identifying the risks that fall within its eligibility criteria, councils should identify eligible needs.

This final sentence reflects the policy intention that councils should identify the needs, which give rise to the eligible risks, which if addressed will ameliorate, contain or reduce the risks. This identification of eligible needs will depend on competent professionals exercising their judgment. In some situations, professionals will deem it appropriate to address all or most needs. In other situations, professionals will consider it appropriate only to address certain needs.

It is difficult to offer prescription on this point. However, councils should note that there is no explicit suggestion in the policy guidance, that all needs associated with 'eligible risks' (that is, risks that fall within a council's eligibility criteria) should be addressed. Decisions on which needs to address will depend on individual circumstances.

The implications of this interpretation is that:

– only those needs associated with 'eligible risks' to independence may be considered for social care support.

- however, needs associated with 'eligible risks' should only be deemed eligible if through addressing them risks are ameliorated, contained or reduced. The extent to which professional consider risks should be addressed will rely on good assessments and effective dialogue with individuals and others.

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".

14. The new Care Plan following the assessment of 16 February 2004 was served on 12 March 2004. Annexed to it is the defendant's Eligibility Criteria of July 2003, which is the version still in force. It sets out in four tables under the headings 'Risks to Independence' an explanation of how the various criteria in Paragraph 16 of the FACS Guidance will be applied. It is not necessary to set out here all the four separate tables. It suffices to refer to that which contains an admitted and in the submission made by Mr Wise a crucial error, since its format is common to the other pages, each of which deals with separate criteria contained in the framework in Paragraph 16 of the Guidance. It is annexed as Appendix 1 to this judgment.
15. The error lies in the inclusion of the various references to the existence or development of health problems. It is only in the critical band in Paragraph 16 that there is a reference to health problems, which are there described as 'significant'. The defendant has wrongly relegated this to 'substantial' and has, again wrongly, asserted that the references to health problems in the other bands are words which have been 'specified by the Department of Health and cannot be changed'.
16. It is relatively easy to see how the various criteria other than health problems can be separately identified and assessed according to their seriousness. That is the approach that Q.3.12 applies; the individual's eligible needs are to be identified having regard to the band into which each can be placed. But this approach does not work so easily in relation to health problems. The existence of significant (which in context must equate to serious rather than meaning something more than trivial) health problems will not of itself result in any particular care need, although the need to prevent development of such problems may. However, many of the needs in connection with health problems will be medical and so will fall outside the scope of social work assessments. The relevant care needs will result from the effects of the health problems. This, as it seems to me, is why significant health problems are contained only in the critical band. It is recognised that they will inevitably produce a range of care needs which cannot sensibly be qualified as required in the bands as set out in the Guidance. If the need is caused by a significant health problem, it should be provided for. The example given in Q.3.12 will apply to the criteria absent a significant health problem, but not if such a problem exists.
17. The need to answer so many questions does perhaps show that the Guidance is not as clear as it should be. But it does certainly require an assessment of all presenting needs and an evaluation of the risks to independence that result. The risk evaluation is carried out by reference to the criteria in the framework in Paragraph 16. The risks are then to be allocated to the appropriate band. But it is clear that every need associated with an eligible risk does not have to be addressed, but only those which provision of care can help to ameliorate, contain or reduce. It is all the more important in a case involving significant health problems that all relevant needs are identified, although that should happen in all cases.
18. The assessment made in February 2004 was thorough and the claimant has not sought to dispute the findings of fact made in it. Apart from the physical problems stemming from the blindness and arthritis, he is showing signs of depression resulting from the loss of independence and inability to manage the pain. He is also upset by his perceived lack of opportunity to leave home. He has to struggle to get himself up and dressed even on a good day. Whenever he goes out he needs assistance, and, although he is anxious to remain independent, more and more he needs help at home. It is recorded that he was complaining of major flare-ups about once every three weeks. During these, he was liable to be unwell for up to three days and unable to do most things for the first 24 hours. But there is included under the heading 'Additional information' an observation that there is a wide variation and inconsistency in the way [the claimant] describes the frequency of both minor and major flare-ups'. It is said that this has led to the identification in the Care Plan of an additional one hour a week to give additional support when the claimant is experiencing a flare-up. It is further noted that the District Nurses have advised that the claimant must not have an injection drawn up by a carer and that they are available at all times. The claimant has not being making use of their services to deal with a flare-ups. The various situations which require the assistance of a carer are identified and are allocated the hours considered appropriate. They are assessed against the FACS criteria. This has led to some (for example, cleaning of the claimant's property, shopping and attendance at appointments other than medical appointments) being assessed as 'moderate' and so to be paid by Central Government funds. Since all are caused by the significant health problems, all should in my view be the defendant's responsibility. But this does not directly disadvantage the claimant: he gets the payment to cover the care need. But it may have an effect since the £200 threshold to trigger a possible ILF payment must all be paid by the defendant.
19. Mr. Wise has criticised the defendant's approach as being piecemeal and formulaic, splitting the claimant's needs into small defined areas. There should be, he submits, a holistic approach. The guidance as explained in the questions and answers does suggest that there should be a consideration of the various individual criteria, but as I have said, I think that this is not appropriate when there are significant health problems. But I am not persuaded that the defendants' approach has meant that the claimant's needs have not been properly assessed.
20. The claimant is paid an amount which enables him to obtain care for the number of hours considered appropriate. He must decide when and for how long he should have carers attend him. He complains that he cannot have less than 1½ hours at a time and that this means he cannot cover his needs. The defendant says that he should be able to get ½ hour. I am not in a position to decide who is right. It is further said that insufficient flexibility is allowed for the flare-ups. It is only 1 hour per week and this is insufficient for a major flare-up occurring every other week.
21. I am bound to say that the amount of care is not at all generous. But it does not have to be: it must be adequate to meet the proper needs. The claimant's condition is deteriorating and there must be regular reviews of his needs. He was saying he needs 27 – 30 hours as opposed to the 24½ provided, but more recently and as a result of advice in particular from Mr. Wall the availability of care at all times is said to be needed. A reconsideration will be needed in the light of the errors which I have identified in the approach at present adopted, but I cannot say that that reconsideration must inevitably result in more hours of care. While I would not be surprised if it did, I cannot say that the present allocation is perverse.
22. I am sure that the defendant is trying to do its best for the claimant. It has its own resource difficulties and no doubt other deserving cases. I appreciate that this judgment may not be regarded as particularly helpful to either party, but this court is not the best tribunal to decide what are essentially issues of judgment based on a factual assessment. In all the circumstances, I am not prepared to say that the Care Plan is perverse, albeit I think that it must be reconsidered. That should obviously be done as soon as is reasonably possible.