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Although the government rhetoric in social care planning and guidance is pro-choice, and pro-maximising independence, the local authority’s duties are laid down in statute, and its discretions are governed by administrative law principles regarding reasonableness and fairness and the Human Rights Act. Those constraints make it clear that clients of social services do not have a legal right to choose where to go or stay in order to receive social services. Ultimately of course, a potential client can refuse to accept a service, and has a choice in that limited sense – but they do not have a right to a service in substitution for what was offered, and refused, so long as it was a lawful and reasonable offer of a service in the first place. So, in law, the real choice is: ‘Accept the service offered’ or ‘Challenge the offer’ or ‘Do without a service’. The duty to a client is to assess their needs, and make a decision as to whether those needs call for a service, or necessitate a service, or whether the need is for care and attention not otherwise available to the client. The ultimate duty is to meet those needs which satisfy those tests, but in between a decision must be made as to how and where to meet the needs. A client’s choice might amount to a wish, a desire, a want, a whim or a preference. A client’s ‘needs’ connote something more intense, which can be said to be related to an objectively observable aspect of their condition or their problem. The authority only has a legal obligation to meet assessed needs. Clients are certainly allowed and encouraged by guidance to put forward their preferences so that they may be met wherever ‘possible’. But what is ‘possible’ depends on the money available to the authority, the risk (either to the client or others) posed by acceding to a person’s preferences, and the availability of space, appropriately skilled services, etc. Consequently the authority’s duty is to make a decision as to what would be appropriate to meet the assessed needs to the standards expected in a civilised society – not what will make (or keep) the person independent and living in their own home. Occasionally, a psychological need may be borne of a particular condition. It was held in Avon County Council, ex p M, that the complaints panel had appropriately determined on the basis of expert clinical evidence put before it that a young man’s preference for a particular residential setting, as opposed to a cheaper alternative, was not merely a ‘want’ but a need related to the condition of Down’s Syndrome. When a client’s preference has a religious or cultural underpinning behind it, then the Human Rights Act would suggest that those preferences should be given great weight and respect in the assessment of what is appropriate to meet need. The fact that religious thought or adherence to a cultural norm is in play may be sufficient in certain cases to turn that which would have been seen as a wish, into a need, but there can be no hard and fast rules and it would be wrong to treat every wish that is ever put forward as a religious or a cultural norm. No-one would think, for instance, that it was an unreasonable whim for an observant person of the Jewish religion/culture to require a Kosher meals on wheels service, as opposed to a European menu. Another example might be a young unmarried female observant Muslim woman’s affront at the thought of being provided with personal care by a man. But if someone said that their own personal religious faith required that they go naked in their own home, and that would be the position when the home care providers were due to call, it would be an unusual authority which would treat this as a ‘need’ that had to be worked into the care plan. There has already been a case in which an elderly Muslim couple’s wishes to remain in independent sector accommodation and have homecare were overridden by the authority’s obligations to meet both of their needs. The professional assessors had concluded that whilst the couple’s language and cultural position was such that moving into a home would be difficult for them, a residential setting was the only means of meeting both of their needs adequately without separating them. See Southwark LBC v Khana. |
