General points which should be borne in mind:
- The assessment process starts from when local authorities start to collect information about the person Care Act Guidance 6.22
- Assessment is a virtual right based upon appearance of need. – Care Act Guidance 6.13
- Flexible process adapted to fit person’s needs and goals [Care Act Guidance 6.4] subject to the legal minimum in the Act or Regulations, of course!
First contact with the authority, which triggers the requirement to assess, may lead to a pause in the assessment process to allow such interventions, e.g. reablement to take place and for any benefit to the adult to be determined. The local authority may ‘pause’ the assessment process to allow time for the benefits of such activities to be realised, so that the final assessment of need (and determination of eligibility) is based on the remaining needs which have not been met through such interventions.
An assessment can lawfully be prioritised, on the grounds of apparent urgency of referral. Most authorities have targets which match the DoH’s performance target statistical requirements. These are usually 24/48 hours, 3/5 days and then 10/14 days, followed by 28 days, according to urgency.
Some authorities say in a letter sent off speedily, by way of the first contact: ‘if we have not heard back from you within 6 months, we will assume that your problems have resolved themselves!’ We do not think that this is a reasonable discharge of the implicit screening function of referred clients.
If an authority put a client in a high category or risk, on screening, and then channelled that client down an obviously inappropriate priority category, then it would expect to be sued for negligence, as well as breach of human rights and statutory duty.
However, putting someone in category 2 and not getting to them until the third period of urgency would not necessarily be a breach of statutory duty to assess. That duty is always going to be subject to reasonableness and missing one’s own target is not necessarily determinative on the legal question of reasonableness in all the circumstances.
In the case of Tucker the authority had failed to conclude anything the judge would have been prepared to recognise as an assessment in accordance with government guidance, or indeed, a Care Plan, despite 2yrs 3 months having passed. The client’s carer had an easy win on these grounds; whereas if the authority had only been prepared to make some kind of a decision about an appropriate care plan for the client, it would have had to have been challenged on the grounds that it was unreasonable in the Wednesbury sense, which would have been a far harder argument to win.
It is well known that OT assessments are the longest in coming, due, it is said to the shortage of OTs nationwide; and not, it is said, to the term and conditions of service, or anything else the employing bodies can control. The ombudsman’s reports are full of findings of maladministration about delays in this regard, but the law reports are not – perhaps because a wait for aids and adaptations is not so life-threatening, usually, as a delay in the provision of personal or residential care. It’s usually just very irritating, and fosters resentment on the part of those who may be feeling uncomfortable about relying on the public sector in the first place.
A further reason for the absence of case law about delay in assessments may be that there has never been the opportunity to obtain damages for distress or harm from this sort of delay, within judicial review proceedings. The Human Rights Act has brought financial compensation within litigants’ sights and litigants have sought to suggest that appalling delay is a breach of various articles, and that damages should be awarded to reflect that breach.
In R (on the application of (1) C (2) W) (Claimants) v SECRETARY OF STATE FOR WORK & PENSIONS (Defendant) & ZACCHAEUS 2000 TRUST (Intervener) (2015) (a case which concerned delays in the assessment of benefit claims for which there was no statutory time limit) a claim for breach of article 6 was dismissed because the delay occurred prior to the making of a determination. A further claim for breach of article 1 was also dismissed because the claimants had no actual right of entitlement to the benefit. Both of these would likely be viewed similarly in a case concerning social care assessment. However it was held that delays of 13 months and 10 months were unlawful on the grounds of unreasonableness in all the circumstances which included the impact on and vulnerability of the claimants, the foreseeability of the difficulties and failures to take opportunities to rectify the situation.
There is a duty under s6 Local Authority Social Services Act 1970 to ensure that the Director of Social Services has at his or her disposal sufficient staff for the discharge of the authority’s functions. One local authority, Hereford & Worcester, before it was abolished, was judicially reviewed on the grounds of a breach of this duty. The case only got to the first stage; but a judge’s permission to go further was granted on the basis of the authority’s own committee’s minutes, which showed that the members knew that their own targets for social services functions were not being met. The case settled shortly thereafter.