Community Care Services and the right to a ‘needs’ assessment
This short guidance provides information about your legal right to an assessment from your local authority for community care services, if you are deemed to meet the local authority’s eligible criteria.
The term ‘Community Care Services’ are provided or arranged by your local authority and can include (amongst other things);
Help with personal care (e.g. dressing, , washing, bathing etc);
Day Care provisions;
Provision for adaptations to the home environment
Assisting in supported housing arrangements
This is just a small list of examples of services which are available through your local authority if you are deemed to be in ‘need’ of these services.
The Adult Social Care team is within the social services department of your local authority and is responsible for assessing people’s community care needs and providing these services to you in the community.
‘Are you eligible for a community care assessment’?
The right to an assessment is one of the few clear cut rights in community care law. The case of R v Bristol City Council ex parte Penfold 1998 confirmed that the threshold test for somebody being granted an assessment is ‘very low’. The local authority ‘must’ carry out a needs assessment in the following circumstances:
If you ‘appear’ to the local authority to be in need of community care services.
If you are disabled;
If you help to care for someone else (note: this relates to voluntary carers not those who are employed privately)
‘Appear to be in need of community care services’
If it appears to your local authority that you ‘may’ be in need of community care services, then under section 47 of the NHS and Community Care Act 1990, the local authority must provide you with a ‘needs assessment’. The local authority must therefore assess anyone who may present as needing a service that it may be able to provide.
Although the local authority must assess anyone who may appear to be in need of a service that the local authority may provide, this does not necessarily mean a service will be provided in every case. You must firstly meet the local authority’s eligibility criteria for receiving such services. It should be noted however, that even if it appears to the local authority that you do not meet its eligibility criteria at the outset, an assessment must still be carried out. The eligibility criteria will be looked at in more detail later.
‘If you are disabled’
You are considered disabled under The Equality Act 2010 if you have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities. This can include for example, suffering from deafness or problems related to hearing, being partially sighted or blind, suffering from a mental illness or a learning disability.
If you are disabled, as well as your right under section 47 of the NHS and Community Care Act 1990, you have an additional, automatic right to an assessment of services you may require as is mentioned in section 4 of the Disabled Persons (Services, Consultation and Representation) Act 1986, without making any such request.
‘If you help care for someone else’
If a person is helping to look after somebody else, that carer can also ask for their own care needs to be assessed when the other person’s care needs are under assessment. This right is detailed in the Carers (Recognition and Services) Act 1995. It applies to anybody who provides, or intends to provide, a substantial amount of care on a regular basis. This right is further extended by The Carers and Disabled Children Act 2000, which allows carers to have their own needs assessed even if the cared for person does not wish to be assessed.
Currently, the local authority has discretion to provide support services to carers if they meet the eligibility criteria however, from the 1st April 2015, the implementation of the Care Act 2014, will provide carers with a legal right to receive services if they meet the eligibility criteria.
‘The Eligibility Criteria for services’
If, following your community assessment you are deemed to have needs for services, a decision has to then be made as to whether or not the local authority will provide or arrange services for you. If you are deemed to meet the local authority’s eligibility criteria, the local authority has a legal duty to meet them needs.
At this time, there is no set national eligibility criteria, however, with the implementation of the Care Act 2014, this is due to change. Currently, local authorities split levels of need into 4 separate categories which are set out in the 2010 Prioritising Need Guidance Framework;
A local authority is free to set the level at which it will provide services, as long as it makes that decision reasonably. Most local authorities set their criteria so that people assessed as ‘critical’ or ‘substantial’ meet the eligibility criteria for services to be provided, however, each local authority will have different criteria. Although a local authority is free to set its own eligibility criteria, it must do so reasonably as was demonstrated in the case of R v Isle of Wight Council [2011,] which involved a local authority acting unlawfully when it imposed its own ‘additional and limiting’ criteria to the categories listed in 2010 Prioritising Need Guidance Framework.
Do I have to pay towards any services I may receive?
In most cases, if a local authority provides or arranges services following an assessment, you will be asked to contribute towards the cost of providing such care. This is however at the discretion of the local authority. If you are asked to contribute to the provision of services, this will be based upon a means assessment of your financial circumstances. Discussions surrounding whether you should contribute towards your support will always be discussed following your assessment being completed. The local authority have a duty to carry out an assessment if you appear in need of services no matter whether you are eligible to contribute towards the cost of services or not.
How long does it take to receive an assessment for community care services?
There are currently no rules as to how quickly a local authority must carry out an assessment for community care services. The request can be made by either yourself or somebody on your behalf. Each local authority will have their own time-scales to carry out such assessments however, if assessments are delayed for a significant period you should contact your local authority’s social services department for a response. If you continue to wait for an unreasonable period you can contact the Local Government Ombudsman who will consider complaints into this matter.
What if I am in need of community care services urgently?
Under section 47(5) of the NHS and Community Care Act 1990, the local authority has a discretionary power, if they deem the matter to be of urgency, to put in place temporary services without the need of an assessment. This would be conducted if there are urgent presenting needs or risks to an individual which must be addressed. The local authority still however, has a duty to carry out the assessment at the earliest opportunity following the services being put in place.
What happens following the assessment process?
Following the local authority’s social services department carrying out an assessment upon you or family member, a care and support plan will be produced. A copy of this plan will be provided to you. The care plan states the services which you have been assessed as needing, when you satisfy the criteria to receive these services and if so, how these services will be arranged.
As stated at the start of this article, this is only a short guidance in relation to your rights to community care which the local authority has a duty to provide if you appear to be in need of services. If you believe you are in need of community care services or believe you are not being provided with the correct level of support in the community, please contact our office and we will be happy to provide advice and assistance to you.
Peter Edwards Law