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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> JM & NT, R (on the application of) v Isle of Wight Council [2011] EWHC 2911 (Admin) (11 November 2011) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2011/2911.html Cite as: [2011] EWHC 2911 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN (on the application of JM and NT, by their litigation friends) |
Claimants |
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and – |
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ISLE OF WIGHT COUNCIL |
Defendant |
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James Goudie QC and Edward Capewell (instructed by Helen Miles, Isle of Wight Council) for the Defendant
Hearing dates: 25th-26th October 2011
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Crown Copyright ©
Introduction
a) failing to comply with the requirements of the statutory guidance governing the provision of adult social care;b) failing to comply with the public sector equality duty in the Disability Discrimination Act 1995, s.49A;
The Facts
(a) NT and JM
(b) The Council's eligibility criteria
"The revised eligibility criteria are intended to ensure that the limited resources available are used to help those most in need whilst containing expenditure within the strictly cash limited budgets....
Effectively expenditure will only be incurred where people are at high risk or in danger of becoming a high risk....
Expenditure will only normally be incurred on the provision of direct personal care and support to users or carers in priority categories 1 and 2, immediate and high risk."
Category 1 – Immediate Risk/Crisis
Category 2 – Substantial High Risk
Category 3 – Moderate Risk
Category 4 – Low Risk
Only Categories 1 and 2 were eligible for the provision of services.
"the criteria for Category 3 are met but the likelihood is that if no services are provided the situation would deteriorate within 2 to 3 months so that there would be a critical or substantial risk."
(c) The proposal to change the eligibility thresholds
"Raise the eligibility threshold in line with FACS (Fair Access to Care Services) criteria used to determine who the council provides adult social care services to, so that those with the greatest needs are assured of support while those at greatest risk are also provided with targeted support in those areas in which they are most vulnerable."
"Revise the council's charging policy so that ... people aged over 80 years would be assessed on the same basis as those aged under 80 years."
"Revise the council's charging policy so that all people are assessed to contribute on the basis of the overall value of their allocated personal budget rather than how they are choosing to spend it."
"2. Impact
Change the eligibility threshold in line with FACS (Fair Access to Care Services) criteria used to determine who the council provides adult social care services to so that those with the greatest needs are assured of support while those at greatest risk are also provided with targeted support in those areas in which they are most vulnerable. [Full year saving of £1.5m]
2.1 The proposal is to change the threshold at which the Eligibility Criteria is applied and provide full funding support to only Critical cases and provide targeted support to those cases at risk of becoming critical as opposed to the current policy of fully funding both Substantial and Critical cases.
2.2 All cases will need to be reassessed prior to implementation. There are currently 1,654 Substantial cases of which 865 cases have actual costs recorded with a total funding value of £7.3m per year.
2.3 In moving to critical after individual reassessment the support required by the most vulnerable will be fully provided and funded. In addition those cases that are reassessed below critical will be assessed and supported to prevent them moving into the critical category.
2.4 In order to determine the actual cost impact of the proposed funding change to Critical, reassessments of all Substantial cases will need to be completed. This will involve the reassessment of 856 service users that have been identified as Substantial in the latest Swift Report.
2.5 At this stage £1.5m has been assumed as the net saving with nearly £6m being invested in supporting substantial cases. This will be refined once the assessments are completed. Implementation would be from 1st April 2011."
(d) The Cabinet meeting on 8 February 2011
"That the following be agreed by Cabinet:
1. Consider the results of the consultation exercise for adult social care services set out in Appendix 12 and the related Equality Impact Assessment and agree the Council's policy on:
a) The eligibility criteria for access to adult care services be changed from 1 April 2011 so that the council will continue to meet fully the needs of all people who have been assessed as critical while for those people who are assessed as having needs defined as substantial it will only meet those areas of need that place them at greatest risk of not being able to remain at home and be safe."
(e) The Council meeting on 23 February 2011
(f) Announcement of the Council's decision
"The eligibility criteria for access to adult care services will be changed from 1 April 2011 to include:
- all high risk needs of people who have been assessed as critical and
- those areas of substantial need that place people at greatest risk of not being able to remain at home and be safe."
"Putting People First
The FACS guidance was superseded in 2010 by a new guidance document entitled "Prioritising need in the context of Putting People First: A whole system approach to eligibility for social care Guidance on Eligibility Criteria for Adult Social Care, England 2010'. Putting People First refers to Government's agenda to promote choice and control for people accessing social care, alongside the provision of preventative services and services that are available to everyone in a community.
This updated guidance therefore encourages Councils to look to develop preventative services to help avoid rising levels of need at a later stage. In addition, early interventions can improve general community well-being and social inclusion...
Who is eligible?
The Council took the decision (in 2003) that people in the Critical and Substantial categories would be eligible for services. People assessed as Moderate or Low are signposted to other sources of information, advice and support. The Council has considered this policy in light of the updated guidance published in 2010 and alongside current financial constraints. The proposal put forward was that from 1 April 2011, the council would continue to meet fully the needs of all people who have been assessed as critical. For those people who are assessed to have needs defined as substantial the Council would only meet those areas of need that place them at the greatest risk of not being able to remain at home and be safe.
This decision was agreed at Cabinet on 8 February 2011 and ratified at Full Council on 23 February 2011."
(g) Reassessment
The framework for the provision of adult social care
(a) Legislation
"28. The statutory framework is to be found in provisions of the National Health Service and Community Care Act 1990 ("NHSCCA 1990"), the Chronically Sick and Disabled Persons Act 1970 ("CSDPA 1970"), and the National Assistance Act 1948 ("NAA 1948").
29. Section 47 of NHSCCA 1990 imposes a statutory duty on local authorities to assess those who appear to be in need of community care services. It requires "an assessment of his needs" and then a decision "having regards to the results of that assessment…whether his needs call for the provision by them of any such services". Subject to any directions given by the Secretary of State as to the manner in which an assessment is to be carried out or the form it is to take, it shall be carried out and take such form as the local authority consider appropriate.
30. Section 29 of NAA 1948 places a duty on local authorities to "make arrangements" for promoting the welfare of (among others) persons who are substantially and permanently handicapped by illness or injury.
31. Section 2(1)(a) of CSDPA 1970 extends the provision of welfare services required by section 29 of the 1948 Act to "the provision of practical assistance for that person in his home", where that is necessary to meet the needs of that person.
32. Thus these Acts require a local authority to assess needs, then to decide by reference to such an assessment whether the provision of relevant services are called for, and then to make arrangements for the provision of the services which have been decided upon as being called for. It is unnecessary to set out these well-known provisions verbatim…
33. Section 7(1) of the Local Authority Social Services Act 1970 ("LASSA 1970) authorises the Department of Health to issue guidance to local authorities which the authorities are bound to follow unless they can provide clear and adequate reasons for not doing so (R v Islington London Borough Council ex parte Rixon (1998) 1 CCLR 119). The Department has issued such guidance in Fair Access to Care Services..
34. Relevant jurisprudence has determined the extent to which a local authority is entitled in the assessment of needs and the provision of services to meet such needs to have regard to resources. It is entitled to have regard to them in assessing needs (R v Gloucestershire County Council ex parte Barry (1997) 95 LGR 638) and in choosing between different means of meeting the assessed need (R v Kirklees MBC ex parte Daykin (1998) 1 CCLR 512). Subject to that, however, a need, once assessed, has to be met by the provision of services…"
"7. It is axiomatic that local authorities do not have a bottomless pit of funds at their disposal. It is permissible for them to take account of the relative severity of individuals' needs and the availability of resources when determining whether it is necessary to make arrangements to meet an individual's needs. However, once a local authority has decided that it is necessary to make such arrangements, it has an absolute duty to provide the individual with the services or the personal budget with which to meet the assessed needs: see R v Gloucestershire County Council ex parte Barry [1997] AC 584"
"71 The subsequent Guidance on Adult Social Care, Fair Access to Care Services, Guidance on Eligibility Criteria for Adult Social Care (2003) ... distinguished between a person's "presenting needs" and her "eligible needs": paragraph 2. The presenting needs were those which the client actually had. The eligible needs were those which the authority were prepared to meet. This depended upon whether they were assessed as being "critical", "substantial", "moderate" or "low": paragraph 16. The authority could decide which categories of need they would meet. This was designed to achieve a good degree of consistency within authorities as to the needs which would be met."
(b) Guidance
"The Fair Access to Care Services (FACS) framework was introduced in 2003 to address inconsistencies across the country about who gets support, in order to provide a fairer and more transparent system for the allocation of social care services. The principle behind FACS was that there should be one single process to determine eligibility for social care support, based on risks to independence over time. Its aim was to provide a framework to enable councils to stratify need for social care support in a way that is fair and proportionate to the impact it will have on individuals and the wider community, taking into account local budgetary considerations. Despite significant developments in social care policy since 2003, in this respect the original principles guiding the FACS framework still very much hold firm."
(c) Case law on the guidance
Unlawful Criteria
a) Impermissible band-splitting, by adopting a 'hierarchy of needs' within bands; andb) Impermissible band-splitting, on the basis of how likely and how frequently a need may arise.
"... in my view Parliament by s 7(1) has required local authorities to follow the path charted by the Secretary of State's guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course.
For the reasons which I have given, if this statutory guidance is to be departed from it must be with good reason, articulated in the course of some identifiable decision-making process ... In the absence of any such considered decision, the deviation from the statutory guidance is in my judgment a breach of the law;"
"It is guidance which any hospital should consider with great care, and from which it should depart only if it has cogent reasons for doing so. ... In reviewing any challenge to a departure from the Code, the court should scrutinise the reasons given by the hospital for departure with the intensity which the importance and sensitivity of the subject matter requires."
(a) The Council's Criteria
"Change (the word 'raise' was used in the letter of 7.9.11) the eligibility threshold in line with FACS (Fair Access to Care Services) criteria used to determine who the council provides adult social care services to so that those with the greatest needs are assured of support while those at greatest risk are also provided with targeted support in those areas in which they are most vulnerable."
"2.1 The proposal is to change the threshold at which the Eligibility Criteria is applied and provide full funding support to only Critical cases and provide targeted support to those cases at risk of becoming critical as opposed to the current policy of fully funding both Substantial and Critical cases."
"The eligibility criteria for access to adult care services be changed from 1 April 2011 so that the council will continue to meet fully the needs of all people who have been assessed as critical while for those people who are assessed as having needs defined as substantial it will only meet those areas of need that place them at greatest risk of not being able to remain at home and be safe."
"The eligibility criteria for access to adult care services will be changed from 1 April 2011 to include:
- all high risk needs of people who have been assessed as critical and
- those areas of substantial need that place people at greatest risk of not being able to remain at home and be safe."
"Under Fairer Access to Care Services (FAC) the government identified four categories of need: critical, substantial, moderate and low. The threshold for services on the Isle of Wight allows for the following:
i) Critical - all high risk needs to be considered
ii) Substantial – needs to be considered where, if they were not met, they would put someone at a high risk of becoming critical
iii) Moderate and Low - to receive information and advice."
(b) Impermissible band-splitting, by adopting a 'hierarchy of needs' within bands
(i) Submissions
"will continue to meet fully the needs of all people who have been assessed as critical while for those people who are assessed as having needs defined as substantial it will only meet those areas of need that place them at greatest risk of not being able to remain at home and be safe."
(ii) Conclusions
"The revised guidance proposes that councils take an approach which both considers and promotes human rights. It proposes that amongst other outcomes, any consideration of an individual's needs should include the right to dignity and respect, quality of life and freedom from discrimination. Councils should be aware that an evaluation of "risks to independence and well being" using the eligibility criteria should relate to all areas of life, and that with the exception of life-threatening circumstances, there is no hierarchy of needs."
"The concern would be that the Council's intention is that if it is possible for a person to live safely at home then regardless of the impact on a person's quality of life, ability to have contact with others, or to live with dignity, they will not receive services where they are assessed as being substantial needs.
Age UK therefore regards this case as being of national significance as the council's approach, depending on how it is implemented, has the potential to undermine personalisation and to enable a return to an era when councils could approach the provision of care with the intention of merely 'warehousing' older people in their own homes, with care being regarded sufficient if it merely kept the person safe."
"Our concern is that if it is possible for a person to live safely at home then regardless of the impact on a person's quality of life, ability to have contact with others or to live with dignity, they will not receive services even though they have been assessed as having substantial needs.
Yet the impact on an adult with ASD who is unable to access the support needed to access the community can be devastating, resulting in isolation, social exclusion and ... the development of mental health problems."
(c) Impermissible band-splitting, on the basis of how likely and how frequently a need may arise.
(i) Submissions
"Those who meet the assessment of Critical will have their assessed needs fully met. For those who do not meet the Critical assessment, a targeted approach is to be taken, balancing the risks these individuals face and focusing on the highest risk area."
"..the assessment tool has been devised to ensure that our targeted work for those assessed as not meeting the Critical threshold intervenes in such a way that it prevents, wherever possible, an individual reaching or meeting the Critical threshold."
"there is a judgment taken by the Care Manager and the individual, of which of the prioritised needs meet the threshold set by the Council i.e. those that are Critical. In stages two and three it is important to identify which of an individual's presenting needs sit directly below the Critical threshold... This assessment is based on the likelihood of a particular need occurring within certain timescales and the consequent likely impact to that individual. If a need falls within a red area on the risk assessment tool, it is deemed to place the individual at high risk and will therefore continue to be met by the Council."
(ii) Conclusions
"the council will continue to meet fully the needs of all people who have been assessed as critical"
the Eligibility Review did not give effect to this decision. A user with a risk assessed as 'Critical' would not reach the eligibility threshold (coloured red on the document) if the risk was assessed as 'Remote', defined as:
"Likely to happen no more than twice a year and/or less than 10% chance of happening and/or will happen after 6 months."
Thus, a very serious risk, even a potentially life-threatening risk, could fall outside the eligibility criteria if it was only likely to occur twice a year or not for at least 6 months.
a) The Eligibility Review superimposed its own additional eligibility criteria - how likely and how frequently a risk might arise - over and above the eligibility framework in Prioritising Need and FACS, based on the frequency and likelihood of a Critical risk occurring. This was impermissible. Councils were required to apply the eligibility framework as set out in the guidance to ensure consistency and transparency among all councils: see paragraphs 1, 44 and 52 of Prioritising Need and FACS Practice Guidance Q 3.1.b) In the guidance, the different bands in the eligibility framework were based on the severity of risks, whether or not they were immediate, long-term or fluctuating. Paragraph 63 of Prioritising Need required Councils to ensure that a person's needs were considered over a period of time, rather than at a single point, so that the needs of people who have fluctuating and/or long terms conditions were properly taken into account. This Council's restrictive criteria on frequency of risk, and risk likely to arise in the future, downgraded the needs of users with fluctuating and/or long-term conditions.
c) Paragraph 55 of Prioritising Need required councils to prioritise 'Critical' risks ahead of 'Substantial' risks; 'Substantial' risks ahead of 'Moderate' risks etc. However, the Eligibility Review prioritised some 'Substantial' risks rated as 'Very Likely' or 'Likely' ahead of 'Remote' Critical risks.
"Substantial - needs to be considered where, if they were not met, they would put someone at a high risk of becoming critical."
"the criteria for Category 3 [i.e. Moderate Risk] are met but the likelihood is that if no services are provided the situation would deteriorate within 2 to 3 months so that there would be a critical or substantial risk."
"Very Likely: | Could happen on a daily basis and/or with a 75%+ chance of happening and/or will happen immediately or within 72 hours. |
Likely: | Could happen on a weekly basis and/or with a 40% - 75% chance of happening |
Unlikely: | Likely to happen on a monthly basis and/or with a 10% - 40% chance of happening and/or will happen between 6 weeks and 6 months |
Remote: | Unlikely to happen no more than twice a year and/or less than 10% chance of happening and/or will happen after 6 months" |
Only those users with 'Substantial' risks which were in the 'Very Likely' or 'Likely' categories would have their needs met.
Failure to discharge the Disability Equality Duty
(a) Statutory framework
"General duty
(1) Every public authority shall in carrying out its functions have due regard to–
(a) the need to eliminate discrimination that is unlawful under this Act;
(b) the need to eliminate harassment of disabled persons that is related to their disabilities;
(c) the need to promote equality of opportunity between disabled persons and other persons;
(d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons;
(e) the need to promote positive attitudes towards disabled persons; and
(f) the need to encourage participation by disabled persons in public life."
(b) Case law
(c) Submissions
(d) Conclusions
"In terms of the Council's overall finances, the Council needed to find gross savings of £20.558m in 2011/12 to deliver a balanced budget. This included grant los of £11.4m, and additional costs to be funded of £10.8m, offset by £2.1m health transfer funding, £5.4 of the overall £10.8 additional costs referred to was in relation to Adult Social Care. This is made up of £3.2m to cover the base budget problem indicated by the year and overspend in 2010/11, and a further £2.2m was provided for demographic growth to fund the projected extra demand that would fall on Adult Social Care as a result of the increase in the demand for service arising from an increasing population of older people and other vulnerable adults. To offset this increased investment, savings from a change in eligibility criteria and from charges to the charging policy totalling £2.5m were implemented. The savings of £2.5m represent some 10% of the total gross savings required by the Council as a whole across all its services."
Thus, the Council was increasing its expenditure on Adult Social Care at the same time as it was making savings by reducing services to users.
Consultation
"..whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken.."
Equality Impact Assessment
"xiv Impact assessments must contain sufficient information to enable a public authority to show it has paid due regard to the duty and identify methods for mitigating or avoiding adverse impact;"
a) the EIA contained no evidence-based information about the specific impact on disabled people of the proposals;b) the EIA did not explain the nature of the 'Substantial' needs that would be excluded from funding by the revised eligibility criteria;
c) the EIA did not explain what the detriment would be to disabled people;
d) the EIA did not state how many disabled people would be detrimentally affected;
e) the suggestions in the EIA for mitigating the effects of the proposal were accordingly made without a proper understanding of the potential detriment.
Additional information on the impact of the revised criteria
"The Council's proposal on which it consulted was to raise the eligibility threshold for the provision of adult social care services to clients re-assessed as "critical" while for those people assessed as "substantial" it would only meet those areas of need that placed people at greatest risk of not being able to remain at home and be safe. It was calculated that this proposal would save the Council a projected £1.6m in a full year and a projected £1m in 2011/12.
The main concern expressed by the 273 respondents to the consultation (which represented the views of 500 people), was that the Council ensured that there was sufficient investment remaining to support the areas of risk for people in the substantial category and that this approach did not represent a false economy as the Council withdrew support for people who as a consequence then slipped into the critical band.
It is the view of the Director for Community Wellbeing and Social Care that the tools that have been devised for assessing risk and the training that has been given to staff should ensure that the concern expressed above is not realised. In addition the proposal does not withdraw all of the current funding for people in the substantial band where £7.5 million will be spent in the current year. The projected reduction of £1 million in 2011-2012 would still leave £6.3 million for investment for people in that band.
The Cabinet essentially has three options available to it, which can be summarised as follows:
1. Proceed with the proposal as consulted upon;
2. Reduce further the level of investment in preventative services for people within the substantial band;3. Leave the eligibility threshold as it is currently so that the full care and support needs of people within the substantial band are met.
The Director for Community Wellbeing and Social Care's advice to Cabinet is that option 2 described above would probably result in the concerns that were voiced about there being insufficient investment to prevent people slipping into the critical band being realised. The consequences of implementing the policy as proposed would need to be carefully monitored and a more cautious approach as encompassed in option 1 is recommended at this time.
With regards to option 3, while on the face of it would be a potentially more desirable option, this would mean that an alternative source for the £1m savings identified in 2011/12, rising to £1.6m in 2012/13, would have to be found. With the financial pressures that adult social care in particular (and the Council in general) is already facing this would be a significant challenge. Therefore on balance the recommendation is that Cabinet agrees to option 1 which is the proposal that was consulted upon as set out in the paragraph below.
As from 1 April 2011 the Council will continue to meet fully the needs of all people who have been assessed as having critical needs while for those people who are assessed as having needs defined as substantial it will only meet those areas of need that place them at greatest risk of not being able to remain at home and be safe."
a) estimating the number of adults currently receiving services, and who potentially might be referred to it;b) categorising those individuals within the eligibility framework;
c) estimating the kinds of services typically required to meet the needs arising in each band;
d) costing the service provision in each band.
This seems to me to be a commonsense approach. Of course, the Council was not required to follow this Practice Guidance. But I note that the Department of Health apparently did not share Mr Goudie's view that such a degree of detail could not be provided in advance of making the decision on eligibility criteria.
"The eligibility criteria for access to adult care services be changed from 1 April 2011 so that the council will continue to meet fully the needs of all people who have been assessed as critical while for those people who are assessed as having needs defined as substantial it will only meet those areas of need that place them at greatest risk of not being able to remain at home and be safe."
a) the statement that "the council will continue to meet fully the needs of all people who have been assessed as critical" was potentially misleading. What it meant was that the Council would continue to meet fully all needs giving rise to eligible risks assessed as 'Critical', which might mean that an individual user would have some needs met, but not others which had been assessed as giving rise to a lower level of risk.b) the statement that "for those people who are assessed as having needs defined as substantial it will only meet those areas of need that place them at greatest risk of not being able to remain at home and be safe" appeared to mean that there was a group of users categorised as 'Substantial' whose needs relating to 'being able to remain at home' and 'be safe' would be met. This was not in fact the position. Users who were described as 'Substantial' by the Council would only have some of their needs met i.e. those that gave rise to risks which were 'Substantial' (as well as being connected to remaining at home and being safe), not those risks which had been assessed as 'Moderate' or 'Low' (whether or not they were connected to remaining at home and being safe).
"Ensuring a consistent and fair application of the revised eligibility criteria through the use of a user-friendly risk-based assessment tool which workers will be trained to apply in a consistent, fair and correct manner."
a) depart in significant ways from the revised eligibility criteria presented to them (i.e. version 3); andb) introduce new eligibility criteria which they had never considered (i.e. version 5).
I refer to my earlier analysis under the heading 'Unlawful Criteria' to the effect of the criteria introduced in the Eligibility Review (version 5).
"I readily accept that throughout the process the Council was giving consideration to how to address the needs of the disabled. In that sense its decisions taken in relation to adult social care were decisions which were relevant to its performance of the s.49A duty. That is not the same thing, however, as doing what s.49A seeks to ensure: namely to consider the impact of a proposed decision and ask whether a decision with that potential impact would be consistent with the need to pay due regard to the principles of disability equality .."
APPENDIX 1
"44. Councils should use the eligibility framework set out below to specify their eligibility criteria. In setting their eligibility criteria, councils should take account of their own resources, local expectations, and local costs....45. Although final decisions remain with councils, to promote greater clarity and transparency, they should consult service users, carers and appropriate local agencies and organisations about their eligibility criteria and how information about the criteria is presented and made available. Eligibility criteria should be made readily available and accessible to service users, their carers, the public more generally, and other relevant bodies.
46. Councils should review their eligibility criteria in line with their usual budget cycles. Such reviews may be brought forward if there are major or unexpected changes, including those with significant resource consequences. However, councils should be mindful of the evidence cited above which suggests that raising eligibility thresholds without a parallel investment in preventative strategies may lead to increasing demand for services in the longer term.
Interpretation
Determining eligibility in respect of individuals
52. …Councils should use the eligibility criteria framework set out below to draw up their own eligibility criteria. These should then be used to identify the needs which call for the provision of services (eligible needs), according to the risks to independence and well-being both in the immediate and longer-term. These eligible needs should also be recorded and agreed wherever possible, by the individual or their representatives.53. Once eligible needs are identified, councils should take steps to meet those needs in a way that supports the individual's aspirations and the outcomes that they want to achieve. (Support may also be provided to meet other presenting needs as a consequence of, or to facilitate, eligible needs being met.)
54. The eligibility framework is graded into four bands, which describe the seriousness of the risk to independence and well-being 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 social support systems and relationships 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 inability 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.
55. 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 and well-being ahead of needs with substantial consequences. Similarly, needs that have substantial consequences should be placed before needs with moderate consequences and so on.
57. The evaluation of a person's need should take full account of how needs and risks might change over time and the likely outcome if help were not to be provided. This should include consideration of the impact upon the person of changes in the circumstances of any carer(s). Assessment is often most effective when conducted as an iterative and ongoing process rather than a one-off event.
58. Councils should also consider that people at all levels of need, regardless of whether or not they have eligible needs or fund their own care, may be able, with the right type of tailored intervention, to reduce or even eliminate their dependency on social care support. Support plans should be constructed with such outcomes in mind, focusing on what people will be able to achieve with the right help, rather than simply putting arrangements in place to stop things from getting any worse. Councils may therefore wish to consider broadening the range of support planning services on offer to target people who may not currently be eligible for services.
Applying eligibility criteria fairly and consistently
60. In particular councils should consider whether the individual's needs prevent the following outcomes from being achieved:
a) Exercising choice and control;
b) Health and well-being, including mental and emotional as well as physical health and well-being;
c) Personal dignity and respect;
d) Quality of life;
e) Freedom from discrimination;
f) Making a positive contribution;
g) Economic well-being; and
h) Freedom from harm, abuse and neglect, taking wider issues of housing and community safety into account.
61. Councils should be aware that the risks to independence and well-being relate to all areas of life, and that with the exception of life-threatening circumstances or where there are serious safeguarding concerns, there is no hierarchy of needs.
62. Councils should not assume that low-level needs will always be equated with low-level services or that complex or critical needs will always require complex, costly services in response. Someone with relatively low needs may still need more complex intervention in the short term to counter the immediate risks to their independence and/or well-being. On the other hand, it may be that an individual's independence and/or well-being is at immediate risk but that a simple one-off intervention, such as the provision of the right piece of equipment, could provide them with sufficient support to get back on track.
63. Councils should ensure that a person's needs are considered over a period of time, rather than at a single point, so that the needs of people who have fluctuating and/or long-term conditions are properly taken into account. Before final decisions are taken about longer-term needs for support, councils should always consider whether a period of re-ablement or intermediate care should be made available, in order to maximise what people can do for themselves before further assessment of needs is undertaken. This should also minimise the risk of premature decisions being taken about people's long-term needs. If there is a health element to a re-ablement package, such services might be funded by the NHS or, alternatively, jointly with councils.
64. In addition to people with long-term or fluctuating conditions, councils should be aware that there are other groups whose disabilities are such that they are at risk of being overlooked in the assessment of eligible need. Such groups might include people who have very specific communication needs, or blind and partially sighted people who may be disadvantaged by assessors who are unaware of the impact of loss of vision... Others with "hidden" needs might include people with autism, whose support needs may not be as immediately apparent or easily understood as those of other client groups. For example, it is known that many people with autism or Asperger syndrome have been refused assessment or access to support because their IQ is "too high" – i.e. because they do not have a learning disability. This is not acceptable. The Government is committed to publishing a new national strategy for autism by the end of March 2010, in recognition of the need for better understanding of the needs of people with autism and to support the development of high quality services tailored to their individual requirements. "
'FACS Practice Guidance Implementation Questions and Answers' (extracts)
"The eligibility framework
Q3.1
Is the eligibility framework in paragraph 16 of the guidance to be used as a guidance 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.
Q3.2 (new)
If councils have to use the eligibility framework word for word, what is there to consult about?
A
Although it is up to a council to determine the bands it will include in its eligibility criteria, it should nevertheless assure itself and that the key local user groups or communities will not be unfairly disadvantaged by the proposed criteria. It should consult widely on this point....Some councils may wish to add to, or exemplify, the risk factors of the eligibility criteria. They should consult about such amendments.
Those who should be consulted on the above matters include service users, carers, local agencies ..., local voluntary organisations and local community groups....
Q.3.3
Within each of the eligibility bands – critical, substantial, moderate and low – there appears to be a hierarchy of needs with the first mentioned being more important than the last. Is this the case?
A
No. There is no hierarchy of needs and related risks within an eligibility band, with the exception of life threatening circumstances in the critical band. For example, critical risks to independence faced by:
should be given equal weight.
Q3.4
In each of the bands there is mention of involvement in work, education or learning, social support systems and relationships and family and other social roles and responsibilities. How can these issues be as important as health and safety, abuse, and an inability to carry out daily routines.
A
For some individuals, threats to their safety, abuse they are suffering or problems they experience with personal care will be paramount. For others, problems in accessing work and education, difficulties in social support and relationships, and difficulties in playing a full part in family and wider community life can be just a important. All these factors, considered independently, can have profoundly negative effects on well-being and independence, and should not be discounted by agencies and professions. Consideration should also be given to how these factors, if not tackled, can also interact with the effect that their overall impact on an individual's independence and physical and mental needs may be increased as a result."
Q3.8
Paragraph 16 gives an eligibility framework. What is the difference between the eligibility framework and a council's eligibility criteria?
A
The eligibility framework comprises four bands of potential eligibility. If a council determines that it only has resources sufficient to meet needs and risks falling into the critical and substantial band, the council's eligibility criteria simply comprise the critical and substantial bands. In other words, a council's eligibility criteria comprises the bands from the framework that represent the needs the council will meet, having taken its resources into account.
Q3.9
How do councils go about deciding which bands of the eligibility framework to include in their eligibility criteria?
A
At the risk of over-simplification, the following theoretical process answers this question. For any given planning period, and observant of its statutory duties under community care legislation .. a council should estimate the numbers of adults currently receiving services, and who potentially may be referred to it. The council should attempt to categories those individuals' needs into the four bands of the eligibility framework. The council should then estimate the kinds of services that typically would be required to meet the needs arising in each band, including immediate needs and developing needs. It should cost this service provision with respect of prices typically faced when commissioning and purchasing services. (A council should also reflect on the longer-term costs of not meeting low level needs that would considerably worsen for the lack of timely help.) The council should then add up the costs of meeting needs falling into each eligibility band. Starting with the critical band, if the estimated costs of providing services to individuals with needs in this band equals the resources locally available to adult social care, then the council's eligibility framework would simply comprise the critical band. If a council's resources could cover the cost of services for individuals whose needs fall within the critical or substantial bands, then the council's eligibility criteria should comprise the critical and substantial bands; and so on.
Q3.10
What do councils do if it appears to them that, for example, they have the resources to meet needs in both the critical and substantial bands, and can extend into the moderate band, without being able to meet all needs that would fall into the moderate band.
A (amended)
Different approaches may be taken. For example, the council could separate the moderate band into two sub-bands. These may be termed, say, "moderate-greater" and "moderate-lesser". In doing the separation the council should regard each of the four elements of the band as having equal weight, and split each element up into risk of greater or lesser importance. The cost of meeting the greater risks should be equal to the resources that are left over once needs falling into the critical and substantial bands are met. The council's eligibility criteria comprise the critical and substantial bands and the "moderate-greater" sub-band.
Q.3.12 (new)
What counts as an eligible need? Is the person or the need that is eligible for help?
A
The question and answer lie at the heart of how FACS-based eligibility criteria, and related assessments and evaluations or 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 risk to independence.
Once needs and risk are identified, the risks are then banded 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 risk, and the band(s) they fall into, are then compared to the council's eligibility criteria. The final sentence of paragraph 42 then 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."