Local authority care assessments: Part 2 – High Court rulings

Published 14/11/2011

Please note: This article was published prior to July 2022, and some information may be outdated.

Means testing for elderly care… Landmark rulings mean more people could receive free local authority care

We previously posted a starter guide to getting assessed by your local authority if you need care at home.

We also mentioned that many local authorities (councils) are cutting the care that they will provide – and limiting it to people assessed as having ‘substantial’ and ‘critical’ needs only.

Some councils have now been taken to court over this. In this post you’ll find the results of those court judgements…

Isle of Wight Council – illegal changes to funding criteria

The Isle of Wight council was taken to the High Court by two severely disabled adults over the council’s plans to reduce adult social care. The Court has now ruled that the council’s actions in cutting its care budget were illegal. It ruled that the council had changed its eligibility criteria without following its own eligibility guidelines and without the proper process of consultation.

This ruling now also applies to ALL councils in England and Wales.

What it means for you?

A council cannot cut services if it affects overall quality of care. If you’re an elderly person receiving care at home and you’ve been told you’re no longer eligible for local authority care (because the thresholds have changed), you can now challenge your local council about this:

Ask your local council to explain exactly how the review of your care needs has been carried out – and according to what specific guidelines.
Ask for everything in writing
If the council’s assessment criteria have changed, ask for a copy of their previous criteria.
If your local council cannot justify why they have cut your care, they may be acting illegally and they will have to revert to the previous eligibility thresholds.
Your council must be able to provide you with sufficient information and for you to be satisfied that they have acted in a way that is not discriminatory.
They must also show that any change to their eligibility criteria is NOT simply on account of ‘budget cuts’.

In essence, councils must always go through a thorough process of consultation before changing at care provision. It would seem that many have not done this.

Sefton Council – illegal freezing of care fees

Landmark rulings about local authority assessments In a separate judicial review, Sefton Council on Merseyside has been found to have acted illegally in freezing its payments to residential care homes for local authority placements. It had not gone through proper consultation with those care providers.

The Sefton ruling means that 120 local authorities in England will now also be forced to review their funding policies.

With Sefton there had been no proper negotiation with the care homes and no regard for the subsequent risk to care home residents.

Care homes on the one hand are saying that the punitive cuts to or freeze in fees received from local authorities are making it difficult for them to provide adequate care.

Councils, on the other hand, are saying that government budget cuts mean they no longer have the funds to provide care.

Pembrokeshire Council – illegal freezing of care fees

In a similar case to Sefton, in Dec 2010 the High Court told Pembrokeshire Council to review its fees after local care homes complained that they weren’t receiving enough to cover the costs of care.

What are our priorities?

Balancing a tight budget is difficult. But is care for vulnerable elderly people really secondary to things like council firework displays, Christmas lights and celebrations and less life-critical areas of spending?

Vulnerable elderly people often don’t have a strong voice to make their case heard – and so any cuts to care under the guise of ‘budget restraints’ would seem cowardly and cynical.

According to Age UK, 75% of councils have frozen the rates they pay residential homes in 2011, and 80% have frozen what they pay for specialist dementia care and for local authority care in nursing homes.

Landmark care fees judgements

These recent court rulings are landmark judgements and indicate that in many instances people should not have lost their council-funded social care packages.

According to the Association of Directors of Adult Social Services in April 2011 only 26 out of 148 councils were funding people with ‘moderate’ or ‘low’ needs. It means that even if you qualify for local authority care after means testing, the council can still simply say that because your needs are not ‘substantial’ or ‘critical’, they still won’t provide care.

It’s like literally moving the goalpost just as the ball’s about to go into the back of the net.

You can now challenge this.

The whole care system is short-sighted and based on budgets and profit for today – regardless of the additional cost this approach brings for tomorrow. Providing better care for people while they are still at home means that more people will be able to stay in their own homes for longer.

Should you be receiving NHS-funded care instead?

If your local authority has assessed you as having ‘substantial ‘or ‘critical’ care needs, you may in fact be eligible for free NHS Continuing Care. Find out more.

Read Part 1 – Local authority assessments: How to get started

Tagged Categories: Care fees, Care homes and hospitals, CHC essentials, CHC funding, Checklists and assessments, Getting assessed

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9 Comments

Sue Collins November 20, 2017 at 1:12 pm

I wonder if someone can explain to me more about the Judicial Review please. I have endured 6 years of fighting for Continuing Healthcare (CHC) for my mother (who is now deceased), we have always been denied CHC on the basis my mother was social care needs only. I have always disputed this, but always been beaten down by the powers that be. The Decision Support Tools (DST) that have been completed do not record my comments, one DST was even discarded as it had "insufficient information" apparently. The list of wrong doings by the CCG is endless. I managed to go to Independent Review Panel (IRP) in August, where the Chair commented that my mothers case was a very difficult one, there is lots of comments in the report saying that evidence was poor, lack of information and my comments and input were ignored every time. We even had 2 copies of the latest DST at the IRP, I have copies of both of them. One of them had been revised in several care domains but it seems that I was the only one with this DST. The revised one had lower scoring than the original one, so why was this one generated? To deny my mother funding I think. The Chair was very concerned, the CCG Representative sat at that meeting saying and assuring the Chair that the "right one" had been used for the final eligibility decision, but which is the right one?? We came away from the IRP hopeful that we may finally get a decision to award my mother CHC but the IRP members ruled that the original decision is sound. I am just heartbroken. I am in the process of appealing this decision to the Parliamentary & Health Service Ombudsman (PHSO) and I want to be sure I get all the key details across to them so I am not rushing the appeal letter. I have been reading and researching and came across the Judicial Review process but am not sure what this is or how and when to use it.

April Barrass July 26, 2016 at 12:51 am

Thank you for your response & information.
I am particularly interested in responsibilities for commissioning services/provision of care for people who have met either the fast track or CHC checklist for full health funding.
If a person has daily health/medical requirements; PEG feeds, injections, administration of medication, medical dressings & in addition personal hygiene needs, positional bed changes transfers etc, is it the local or health authorites responsibility to commission?
In terms of my position & lack of health/medical background I consider securing provision for someone with complex health & care needs would be placing the individual at risk & the local authority in a potentially dangerous situation.
What is the legal position for workers within the local authority, as currently the expectation to commission care for people receiving fully funded health care is the responsibility of the social care teams.

Angela Sherman July 31, 2016 at 3:04 pm

The starting point is the extent of care needs and whether a person is eligible for Continuing Healthcare (CHC). If they are, it's my understanding that the CCG is responsible for care. After all, a local authority cannot legally provide care if a person qualifies for CHC. Although it doesn't matter who actually delivers the care when a person is receiving CHC (e.g. a carer, relative, etc.), the body that commissions the care does matter.

April Barrass July 8, 2016 at 1:17 am

I am a social work assistant and experience constant issues and unnecessary delay tactics in terms of Continuing Healthcare (CHC) checklists. Currently a specialist nurse has completed and submitted 2 fast tracks to our local CHC Team. Both were refused, and consequently the specialist nurse was instructed to complete a CHC checklist. The person requiring urgent care is not involved with the social care team as the request for involvement was to commission care. Today I received a information request form outlining information/evidence required.

The person who is ill at home with her family are in a desparate position, will now be forced to endure a comprehensive social care assessment, this would only create more anxiety and distress.

The specialist nurse has provided all relevant information, and the overriding level of care needs are health and medical, OT assessment is in progress, personal hygiene care identied, peg feed 4 x daily, medical dressings and medication requirements.

My question is why is the information reflected in the CHC checklist not sufficient? In addition why is the social services team responsible for commissioning the provision of care? And lastly why the social care assessment can't be completed at the point of DST?

I would appreciate any guidance.

Thank you.

Angela Sherman July 15, 2016 at 7:58 pm

April - it sounds as though it should be sufficient to trigger the full assessment, especially if the scores were above the minimum required. This may also help: http://caretobedifferent.co.uk/nhs-continuing-healthcare-checklist-assessment/ ad also this article: http://caretobedifferent.co.uk/care-act-2014-helps-you-with-nhs-continuing-healthcare/ (Be sure to read the comments under this second one, too.)

Angela June 27, 2014 at 3:04 pm

Hi Nicola - I'm not aware of any at the moment myself, but that's not to say there aren't any going on. They are certainly needed.

Nicola James June 15, 2014 at 11:44 pm

Are you aware of any Judicial Reviews that have been brought against any authority's 'interpretation' (unlawfully flouting) of the guidelines for NHS Continuing Care, where for example, they are disregarding needs if they are well managed?

Roger November 14, 2011 at 12:20 pm

The situation people who qualify for care funding find themselves in is so injust. It is also sad how their trust in "the system" is so misplaced.

Angela November 14, 2011 at 12:47 pm

Thanks for your comment, Roger. You're right - and elderly people in particular are less likely to complain and will trust that the system is working for them. Sadly though the opposite is often true.