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.
In Ealing LBC, ex p C, in a case about the Children Act 1989 function for providing services for children in need, a court held that the approach of the authority to the application of their own eligibility criteria was Wednesbury unreasonable – ie completely unsustainable.
The authority had criteria for defining degrees of disability, but refused to acknowledge that a particular boy came within the severely disabled category. Given that he suffered from an extremely broad range of significant to serious disabilities, the judge simply found that no reasonable authority could possibly have regarded the boy as outside its own criteria.
This case carries a serious lesson for all local and health authorities that simply re-interpreting the National Eligibility criteria progressively ever more tightly as the money runs out is likely to be unlawful when it moves beyond a rational interpretation of their meaning. Authorities must remember that having set criteria for the performance of their functions they must live up to them, and act reasonably when deciding whether ordinary prose terms in English fit the scenario of needs or difficulties presented to the Panel or other decision-maker, by the client or the care manager.
Secondly, with regard to the question – are there limits to what a Panel can do? We have always said (drawing on Scots South Lanarkshire case) that there is room for an argument in litigation that it is unlawful for a Panel to have regard to the precise state of the budget at the moment when it is making its decision as to eligibility. Since this seems to be the main raison d’etre of Panels up and down the country, this would obviously necessitate an urgent re-think of how provision decision making is done, and the argument has not been tested in court.
However, the Care Act guidance (which is statutory) : “10.85 Due regard should be taken to the use of approval panels in both the timeliness and bureaucracy of the planning and sign-off process. In some cases, panels may be an appropriate governance mechanism to sign-off large or unique personal budget allocations and/or plans.
Where used, panels should be appropriately skilled and trained, and local authorities should refrain from creating or using panels that seek to amend planning decisions, micro-manage the planning process or are in place purely for financial reasons. Local authorities should consider how to delegate responsibility to their staff to ensure sign-off takes place at the most appropriate level.”
Thus the only lawful remit of Resource Allocation Panels which have at their disposal a budget spreadsheet, in England, would seem to be the decision as to which is the most cost-effective means of provision, drawn from amongst a range of adequate alternatives