Yes, as a matter of law, if there is a good reason for treating different people or types of people differently. For instance, ring-fencing funding intended for individuals who previously qualified for ILF. Or if people have sold their homes to enter residential or nursing care, but would not now meet the national eligibility criteria, such that some of those people would appear to be newly able to live independently, it would be ridiculous to assess them as no longer needing care, unless they were able to be found homes again, of which they were willing to take tenancies.
Likewise we think that there is some good reason for deciding not to re-assess those who have already qualified under earlier criteria, in that upheaval caused by a change in the care package will be perhaps disproportionately distressing. The mere fact that people are much more likely to complain if something they have been used to getting is taken from them, despite their needs not having changed for the lesser, would not be a legitimate reason on its own for not applying new criteria, in our view.
But it has to be said that the more often the criteria are tightened, the more scope there is for the political and ultimately legal challenge that what is being done is unfair, discriminatory and unreasonable. If people on two sides of a street with identical circumstances get different packages of care just because they qualified at different times, there will be hell to pay, of one sort or another, sooner or later…
Now that eligibility criteria are set nationally, they are less likely to change frequently. However, if changes do occur, we recommend to those to whom we give guidance, that transitional arrangements should be made for re-assessment 6-9 months behind a tightening of criteria, so that there is an awareness and more of a run-up to actual cuts in packages. One form of transitional arrangement may be the offer to meet previously assessed but now non-eligible needs using the power under the s.19 Care Act.