QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|Sheffield City Council|
Ms Jane Oldham (instructed by the Director of Legal & Administrative Services) for the Defendant
Hearing date: 19 May 2004
Crown Copyright ©
Mr Justice Collins:
"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.
"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".
"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: -
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.
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.
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
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.
"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".