In our view, whilst it is clear that an authority can decide from a given date that from then on it is not going to treat shopping and cleaning, without more evidence of a need for personal care, as a community care service, it is not lawful to refuse an assessment on the basis of a policy as to provision. Case law in the shape of Penfold and Parker make it clear that the authority must still consider whether to make exceptions to policies, in exceptional cases.
The only situation in which we would give different guidance is where something has been provided in the past, which the authority has realised it was not lawful to provide. The best example is the provision of nursing care in the community. Whilst we know that there was always a grey area, in which certain heavy duty personal care would be regarded as nursing when it suited the authorities, and as personal care when that suited them better, there are often cases of provision of some obvious nursing service being picked up by the local authority, (often by way of contract with residential care homes, so as not to have to move the individual when they deteriorated and needed nursing care). Yet the Coughlan case made it plain that this was unlawful because the only lawful setting for the local authority to purchase nursing care was a nursing home, and it had to be incidental ‘basic’ nursing care at that, not ‘specialist’ in either nature or extent.
Thus in a situation where all someone wanted from the local authority was the provision of nursing care in the community, it would be lawful to refuse an assessment – unless, of course, community health provision had been delegated to the local authority by the health authority, under the Health Act 1999.