If we decide to meet some non-eligible needs or have transitional arrangements because our local pre-Care Act eligibility criteria were more generous than the Care Act eligibility regulations, do they have to be the same for all groups?
There is no reason in law why criteria for provision should necessarily be tightened across all service users at any given point.
This is because the framework for criteria is supposed, in the light of caselaw, to be a 2 stage thing – the first stage being the exclusion of certain types of peripheral needs from the definition of what the authority will recognise as a need for a community care service, and the second stage being the setting of a level of need which is regarded as being sufficiently bad in terms of risk and seriousness that intervention by the authority is necessitated. There is nothing inconsistent with that law, in choosing to tighten the criteria for a particular set of clients as opposed to any other.
However, even if it is legal to do this, it should be anticipated that it would be politically very challenging to be seen to make such value judgements. Thus, regardless of the legal merits of such a claim, if an authority only tightened the criteria for “older” people, or the learning disabled, or the physically disabled, it could expect to be challenged by a client for age or other disability discrimination under the Human Rights legislation and the Equality Act.
The burden would fall on the authority of justifying a distinction between physical and mental disability, so far as the criteria were concerned. So whatever the merits of a defence in law, it should be recognised that these challenges would have a high ‘nuisance’ value, in terms of management time and bad publicity.
Inconsistencies as between client groups or services as to what is the trigger for qualifying for discretionary social care provision are not inherently unlawful or unreasonable, because the differing needs manifested by clients from different groups and the nature of the impact of particular difficulties for particular clients, may well call for a different approach, as far as social work professionals or good practice expectations are concerned. However, it all depends on how the authority has chosen to structure its criteria, in our view, as to whether a risk of legal challenge arises.
So long as those with eligible needs under the statutory Care Act eligibility criteria are provided for, If an authority elects after due consideration to use differently worded criteria for providing discretionary care beyond that required by the Care Act for particular client groups rather than have an overall matrix, then there is no reason why, in law, the same number of categories of those who ‘qualify’ for services in each client group should have to be set. It would not inevitably risk challenge to have people with learning disabilities receiving services even if they are in group 6, although those in group 5 if elderly or physically disabled or mentally ill are those at the lowest level of need in their client group who are receiving actual intervention – so long as the wording for what it took to be included within group 5 or 6 in each client group’s case, was also different.
Other authorities have chosen, however, to have an overall matrix of need and risk, with categories say 1-8 across the board, and then fleshed out what it takes, in scenario terms, to be in those groups, by reference to secondary client group-specific wording, sensibly geared to what practitioners would reasonably expect to find as the difficulties specific to those in a particular client group. The fact remains, however, that where this is done, the outcome of being deemed to be in category 3 is translated into meaning that the same level and type of need has been acknowledged, regardless of the client group from which one comes. This is the case wherever the descriptions of the level of need and risk for categories 1-8 in the overall matrix are in fact the same across all existing client groups, even though what the care manager has to look for and record, differs, depending on the client group.
In these circumstances, the proposal for having a different cut off point for members of a particular client group not being eligible for services suggests that the authority would appear to be saying that it prioritises certain client groups over others, even though they have the same level of needs. This is dangerous, in our view, both legally and politically.
In such circumstances, we think it is better to change the policy so it matches the other existing trigger point for providing discretionary support beyond that required by the Care Act eligibility criteria.
Another way of validly allowing one particular client group access to services, would be to decide to provide for preventative services to (for example) the mildly learning disabled client group as a priority, over and above other client groups, using the power under s.2 Care Act. Translating this legal fact into criteria can be done in the following way: the authority is discharging the function of providing what is necessary under its statutory duties, but is also providing what it believes to be desirable, in the way of preventative services under those other powers. A justification for this is that the learning disable client group tend to be expensive to provide for if the current caring arrangements break down, because such clients are so often cared for at home by loving carers or relatives, who therefore can do with all the help that is available. That is never going to stop this kind of prioritising being politically provocative, however.