This case remains important on the issue of whether resources can be considered when making decisions about how to meet needs. However the introduction of national eligibility criteria under the Care Act means that it is no longer good law in relation to local authority policies on assessment and eligibility.
Under the Care Act process we have three distinct steps. First, “assessment” under s.9/s.10 – the threshold for which is specified in the duty. Second, the eligibility decision under s.13 – the threshold for which is specified in the eligibility regulations. Third, care planning under s24&25 i.e. determining how needs are to be met under s.18. At all three of these stages there are statutory duties which remove the discretion which gave rise to the Gloucestershire case. Local authorities no longer have discretion to tighten their criteria further than the statutory requirements (although they do have powers to provide more). Nevertheless, given the ruling in Gloucestershire, it is reasonable to infer that the courts will hold that local authorities cannot take resources into account when deciding whether to meet needs which are eligible under the national criteria.
However, a council CAN offer the cheaper of two appropriate (and lawful) means of meeting a need when and if it needs to. (Kensington & Chelsea v McDonald, 2011)
Gloucestershire in detail
Neither of the reasoned majority judgments in the Lords, suggested that it is lawful to take the precise state of the budget into account at the moment of individual assessment. Both emphasised the need for eligibility criteria to be raised or lowered at Committee level, taking resources into account if necessary, before any re-assessment of need may lawfully occur against those criteria, and affect the service package. No-one suggested in that case that the state of the budget in any given week should affect how the criteria were interpreted or what an authority could regard as meeting need.
It is important, we think, to grasp that the factual basis for the first instance decision in the Gloucestershire case was that Mr Barry’s services had been cut without any re-assessment, because funds were running out. Given that the first instance Court was prepared to hold such action unlawful, without a re-assessment having taken place, it did not need to focus on the relevance of resources at any particular stage of the assessment process. However, since the first instance decision meant that the all the affected users would be re-assessed, with reference to a shortage of resources, that was why the service using clients were able to appeal on this issue, despite having won.
In the Court of Appeal (the next stage up the hierarchy), some of the judges focused on resources at the stage of identifying needs; others on the question of their relevance at the stage of deciding whether intervention was ‘necessary’. Again, nobody focused on the budget at the precise moment of Mr Barry’s re-assessment, because it had yet to be done.
The House of Lords’ majority speeches dealt with the question of taking resources into account by laying out the vision of prior eligibility criteria for types of need and degrees of need, set according to the planned budget. So it is by no means clear that amending eligibility criteria, ‘re-interpreting’ them, or settling on the actual contents of a care package by looking at what is available on the day of an individual’s assessment, is authorised by the decision in Gloucestershire.
Their Lordships focused on the distinct stages of identifying needs, and then making a provision decision, (in the sense of deciding whether a care package was necessary), and regarded those two stages together as the assessment, which they confirmed should both be done against published criteria. Lord Nicholls said that it was important to bear in mind that the process contemplates three separate stages: the identification of need, the question of necessity for provision, and then the making of arrangements pursuant to the duty at the end of s2 CSDPA. At that point, it was emphasised, resources are no longer relevant to a decision whether or not to provide appropriate arrangements.