The South Lanarkshire case does not formally determine the position for England, especially now that the English legislation has been updated more recently, but it remains persuasive. For the reasons set out below, we think it is virtually impossible to argue that residential care waiting lists which are budget driven or otherwise predicated upon quotas or one in, one out systems, can be sustained.
Ever since the infamous Gloucestershire ex p Barry decision, which said that resources could be taken into account in the community care process, the law has been moving on, a long way from that principle any longer being of general application for social services departments.
Legal commentators have long suspected a waiting list system which is budget driven is highly probably unlawful in the light of the Sefton, Wigan, Kujtim and South Lanarkshire cases. All these cases suggested that once the assessment of need formally established that the client had eligible needs which could not be met by an informal carer or some means other than provision by the local authority to him or her, then what arose was a statutory duty (and not a discretion) to meet that need by provision of the appropriate accommodation. This has now been confirmed by the clear wording of s.18 Care Act “A local authority, having made a determination [of eligibility], must meet the adult’s [eligible] needs for care and support”
Any ‘one in, one out’, or ‘quota’ system which is operated by a social services department inevitably means that there will be some people who have met the statutory eligibility criteria but being in need, who will nevertheless have to wait for their needs to be met.
Nevertheless, the specific issue of the legality of keeping someone waiting for residential or nursing home care, which they have been assessed as needing, has still not been dealt with directly by the English courts.
In Sefton, the client was already in a nursing home, being cared for, albeit being made to spend her own capital.
In Tammadge, the dispute was really as to whether an assessment had been completed, and whether it was obligatory for the Director of Social Services to agree with the upholding of the prior assessment by the Independent Complaints Panel (not so much when the needs should be met).
In Kujtim the issue was whether the authority was discharged from its duty to provide s21 NAA care, when the client’s conduct had made it impossible for it to meet the need which was acknowledged still to be subsisting. There was no waiting list issue involved.
Whilst the Care Act does not contain any formal time limits for the discharge of the statutory duties, the statutory guidance does say “the plan should be completed in a timely fashion, proportionate to the needs to be met.” And, even more directly “The planning process should not unduly delay needs being met.” (10.84). That begs the question whether the state of any one budget within a social services department at the point when the duty to meet need has been triggered, is a legally relevant consideration to weigh in the balance as to what counts as reasonable, in terms of deferring discharge of the duty. We think it is highly unlikely that once a person has been assessed as being at what is bound to be the sharp end of ‘need’, it could possibly be considered proportionate to the needs to be met for mere adherence to a monthly budget plan for a particular service from an authority to be considered sufficient justification for a delay in meeting the need.
This view is based in part on the fact that the judges have said in cases such as East Sussex ex p Tandy and Birmingham ex p Taj Mohammed that they will not countenance the downgrading statutory duties into mere discretions, by the back door. It seems to us that regard to the state of the residential care budget through a quota system amounts to precisely that – down-grading what has been held to be a duty back to a mere discretion… Authorities which do this are in effect saying: ‘we know we owe you a duty, but it’s up to us when we discharge it’. And we do not see how that can possibly be lawful. It seems to us that whenever any authority is challenged over a waiting list in this field, they tend to re-work their budget, rather than risk an unpalatable and inconvenient precedent in the English law reports…
The Courts have also said that when statutory duties are corporate duty (as they are in the Care Act), it is fallacious, in legal terms, to plead an actual shortage of resources whilst there are still coffers available to the authority as a whole, containing money for other discretionary functions or via the reserves. Statutory duties must be prioritised and monies to find them shifted between budget holders, teams, or even directorates within a local authority, even if the duty in question stands referred to the social services committee or social services department. It will be the authority which is sued, not the Director for Social Services….
Another nail in the coffin of budget management in this regard is the combined implications of the Choice of Accommodation regulations and the definition of a lawful personal budget under the Care Act. The Choice of Accommodation regulations specify that, in order to be a valid option for the adult to choose, the accommodation must be available (reg 3(1)(d)). Once it has been acknowledged that there is a duty to meet a need and that the need can only be met appropriately through the provision of a specified type of residential placement, then should there be no place appropriate and available at the same or less than the Authority’s ‘usual cost’ for that level of need, an Authority must set the adult’s Personal Budget at the level of whatever is required to access a suitable and may not regard it as a top-up. The excess payment is not required through the client’s ‘choice’ in such a situation; it is necessitated in order that the statutory duty to meet need can be discharged at all. This is because s.26 Care Act defines as Personal Budget as “the cost to the local authority of meeting those of the adult’s needs which it is required or decides to meet”. Thus, if the adult’s needs cannot be met appropriately through an actually available, cheaper, residential placement, then the adult’s personal budget must be increased to reflect the actual cost of the available place. This is thus consistent with our view that the precise state of the budget at the time need is presented is legally irrelevant to the performance of the function.
What is the effect of the Scots case?
So, the Scots case, MacGregor v South Lanarkshire Council remains the only case law on the specific question. The outcome in that case was that it is unlawful, once the person has been assessed as being “in need”, for the authority to put someone on a waiting list and do nothing in the meantime. The waiting list in question was also ordered chronologically, instead of with an eye to urgency, which aspect was also criticised by the judge as unreasonable.
In that case, the judge held that in the scenario where an assessment has concluded that the person is in need, then even if residential care or nursing home care is not what the authority wishes to provide, or cannot provide, then somebody’s budget has got to be spent on some sort of service, in order to meet the assessed need. The decision has not been appealed.
Under the Care Act, once it was decided that the need could only be met appropriately by means of residential care, then it would not be lawful to delay the provision of it, other than very briefly in circumstances where it would be part of an appropriate way to meet the client’s overall needs (e.g. for a few days in order to enable them to access a bed close to their family rather than have to be placed out of area). If, in such circumstances, it was felt that needs could safely and appropriately be met other than by a residential placement during some interim period, then the needs must still be met in some way and cost can only be considered once provision has been deemed (by a rational professional judgement on the basis of evidence) to be appropriate to meet that need.
The man in the Lanarkshire case (90, confused and agitated, deaf and agreed to be in need of 24 hour care) had been told by the Council that it might be 7-8 months before he would get public funding. We understand that his family placed him privately in a nursing home in the meantime, under protest. Under the Care Act, this would become a matter of Mental Capacity law as to whether the man had the capacity to decide on his care, residence and manage his financial affairs. If not, and no-one else had the legal power to do so (deputyship or LPA), then the local authority would have to meet his needs lawfully – regardless of the financial means of his family, see ASTER HEALTHCARE LTD v BATOOL SHAFI (AS REPRESENTATIVE OF THE ESTATE OF MOHAMMED SHAFI) (2014)
In analysing the nature of the community care functions under the Scots social work legislation, which are different to those in force in England and Wales, the judge said that after a person’s needs have been investigated and identified, there is a duty to make a ‘yes’ or ‘no’ provision decision ( – in terms of English law, this would be whether the needs are eligible under the Care Act eligibility regulations) – and then finally, the decision what to provide, and how much of it. The equivalent English statutory function is triggered whenever someone establishes ‘a need for care and support’ which cannot be met by a willing and able informal carer or appropriately via some other available service.
That final care planning decision was said by the judge to be able to be informed by the shortage of resources available to the authority, but only in a limited way. Resources difficulties could lawfully affect what type of care would be provided (ie home care or residential), and when, BUT only if provision of some adequate sort to meet need is made in the meantime.
In English law, it remains the case that resources difficulties can be taken into account when choosing between MacDonald v UK [2014] appropriate ways to meet an assessed need, but an inappropriate way to meet the need is irrelevant to the decision
Administrative arrangements for a Member or a manager to ‘vire’ sums from other budgets becomes central to remaining on the right side of the law in Scotland. This will be necessary firstly if the authority decides for whatever reason that it is going to run a waiting list, and secondly if it should come about that there is either no suitable place for the specialist needs of the person in the area, nor one a bit further afield which would be appropriate to meet the needs of the person, including their needs for contact with their loved ones, or if there was literally no place at all because all the homes shut down and the authority had none of its own.
The decision is not formally binding on English and Welsh authorities because Scots law (the 1968 Social Work Act) is distinct from the provision in the Care Act 2014in force south of the border. However, the Scots legislation as to the process of assessment and eligibility decision making and then care planning is more generous in the discretion it gives to authorities to decide what to provide, than is the Care Act framework.
The wording of the duty to meet needs in s.18 Care Act 2014 in England is stronger than the more broadly discretionary approach in the 1968 legislation in Scotland. It is also established in England, that the duty to meet need must be discharged, regardless of a want of resources within a particular budget pot (Gloucestershire and Sefton);
The courts have made it clear that they will not permit duties to be downgraded into mere discretions by the back door (eg East Sussex ex p Tandy).
It therefore strikes us as virtually inconceivable that a Court south of the border would give a wider ambit of discretion to an English or Welsh authority to run waiting lists than was given to the Scots authority.
See the related question, regarding the legality and operation of the ‘Panel’ system of approval of funding for Care Act care: Is the ‘Panel’ system of approving care managers’ recommendations for residential and nursing care placements lawful?
This case lends tremendous weight to senior management’s entreaties to Members to provide more funding than was originally allocated to adults’ services functions, because the extent of a statutory duty has been clarified and broadened by the court. It is not scare-mongering to envisage a waiting list case being harnessed to a Human Rights Act challenge, in the light of South Lanarkshire – which if successful, would pave the way for damages claims, out of budget, in addition to the costs of the judicial review itself and the death-knell for budgeting to a fixed monthly quota…