Local authorities can no longer set their own eligibility criteria and must use those in the Care Act eligibility regulations. However there will still be issues of interpretation. Our view is that Gloucestershire ex p Barry will still apply to the issue of interpretation and that criteria cannot simply be cranked tighter and tighter until no-one ever qualifies, no matter how appalling their situation might be.
The eligibility criteria should, therefore, be interpreted by reference to the standards of a civilised society – ie, by the standards of the society of the place and time in question, for a reasonable quality of life to be facilitated by way of community care services.
Local policies regarding interpretation must not contradict the statutory eligibility criteria and must not be so unreasonable that no reasonable authority would ever dream of interpreting the criteria in that way. The judges in the Gloucestershire case mentioned that the concept of severe risk of physical or mental harm might provide a useful benchmark by which to judge that line.
In the NHS field, the Coughlan litigation teaches us further that criteria can be unlawful for failing to take into account the limited legal obligations of others. There, the HA had assumed it could have as tight continuing care criteria as it desired, because it assumed that the LA would simply purchase the rest of whatever was needed for the clients. But that was wrong in law, because LAs’ powers were limited to purchasing basic nursing care in nursing homes at the time.
By analogy, if local authorities were to have a policy of assuming that some level of eligible need is already being met by informal care in a situation where someone has no carer ABLE and willing to provide care, and failed to take into account that carers are not legally obliged in the UK to provide unpaid care to any other adult, no matter what their relationship, they would be committing a similar public law sin, and the criteria would be unlawfully tight.
No authority has been successfully challenged on the basis of the unreasonableness of its criteria (pre-Care Act) or interpretation of the eligibility criteria (since the Care Act). However the Care Act has substantial statutory guidance which provides detailed commentary on the application of the eligibility criteria. Failure to have regard to the guidance in interpreting the eligibility criteria would be unlawful and could result in a successful challenge.
Authorities often rely on officers or Panels made up of members, officers and other individuals from other agencies, usually chaired by an officer, to decide from say fortnight to fortnight which of 30 or so cases brought before the Panel qualifies under ‘the criteria’ at that moment. The assessors will have done assessments according to the criteria, but may not have power to bind the authority to an actual concluded assessment until the Panel has approved the recommendation. This is not in itself unlawful. But what then tends to happen is that the criteria are re-interpreted more tightly as the budget problems get worse and worse towards the end of a month, or a quarter etc. The Care Act guidance specifically warns against the use of Panels which “amend planning decisions, micro-manage the planning process or are in place purely for financial reasons” (Care Act Guidance 10.85).
This is in line with our view of the pre-Care Act case law which already indicated the potential unlawfulness of such practices:
firstly, the judges in the Gloucestershire ex p Barry clearly envisaged processes which would enable consistency between individuals. Frequently changes of local interpretation on the basis of week to week shifts in budgetary constraints would be inconsistent between individuals.
secondly, whilst the Gloucestershire ex p Barry judges said that the budgetary problems of the authority could legitimately be taken into account in setting the eligibility criteria (as could then be done locally), they did not say anything about the relevance of resources to the question of application of those pre-set criteria to actual individuals. Furthermore, the judge in the South Lanarkshire case implied that at that point, the only question is one of need, ie need measured against the criteria, not the budget available at that moment.