Lost to the system: ‘Self-funders’ and assessments of need

Many ‘self-funders’ are being denied the assessment of needs to which they are legally entitled, argues Michael Furminger. It will be beneficial for many self-funders to seek such assessments of need and local authorities should promptly agree to undertake them.

An obscure detail in the Government’s care funding reform plans confirms what many have long suspected – local authorities regularly and unlawfully fail to undertake assessments of need for people who pay for their own care.

Those advising self-funders need to be aware of what can be a valuable opportunity for their clients. Local authorities need to promptly undertake assessments of self-funders when requested to do so, even if finances prevent them changing their normal practice.

The duty to assess and review

Section 47 of the NHS and Community Care Act 1990 (“the Act”) requires that a local authority undertake an assessment of need for community care services where it “appears” to the authority that the person “may” be in need of any such service. The threshold created by the language of the section is a very low one (R v Bristol CC ex p Penfold (1997-98)1CCLR 315).

The presentation of potential need is what creates the duty to assess. The financial circumstances of the person concerned are irrelevant. Government guidance puts this point beyond doubt.

“Local authorities are under a legal duty under [the Act] to assess the care needs of anyone who, in the authority’s view, may be in need of community care services. It is the Department’s view that the law does not allow authorities to refuse to undertake an assessment of care needs for anyone on the grounds of the person’s financial resources, eg because they have capital in excess of the capital limit for residential accommodation…” (LAC 19 of July 1998, para 8) (my emphasis).

Prioritising need in the context of Putting People First: A whole system approach to eligibility for social care (Department of Health, February 2010) (“Prioritising Need”) is policy guidance issued under section 7 of the Local Authority Social Services Act 1970 by which Parliament “has required local authorities to follow the path charted by the secretary of state’s guidance, with liberty to deviate from it where…there is good reason to do so, but without freedom to take a substantially different course.” (Sedley J, R v Islington LBC ex p Rixon (1997-98) 1CCLR 119, 123).

Paragraph 71 of Prioritising Need could not be clearer: “Any assessment of a person’s financial situation must not be made until after there has been a proper assessment of needs…An individual’s financial circumstances should have no bearing on the decision to carry out a community care assessment…”

Prioritising Need also states that “councils should…ensure that arrangements are put in place for regular reviews of support plans” (para 141).

The law is quite clear. Where a self-funder “may” be in need of a social service they should be assessed and that assessment should be subject to regular review.

A longstanding concern

Despite the clarity of the law, there has been longstanding concern that many people entitled to assessment do not receive it. This concern is general but also specifically related to the position of self-funders.

General concern as to whether assessments are being undertaken when they should be is inevitable when, over a period of increasing demand for social care, research shows the number of assessments to be broadly unchanged (in fact, they appear to have declined a little). The same research indicates that between 2007/8 and 2010/11, reviews of assessments were down by more than 14%. [1]

There is also concern that self-funders in particular are not being assessed. The old Commission for Social Care Inspection in The State of Social Care in England 2006-07 (2008) described self-funders as “people lost to the system”. None of the people questioned for a study for that report had experienced a needs assessment prior to moving into self-funded residential care.

The numbers of people involved

If self-funders are not being assessed when they should be, the numbers missing out on this crucial service are considerable.

According to a 2011 ADASS/LGA report, People who pay for care, [2] “the great majority of local authorities currently have little information about the numbers of people who pay for their own care”. Making estimates is difficult but the number of self-funders is significant. Self-funders account for approximately 20% of home care and 45% of those in residential care. [3] Both figures are growing.

These figures mean that there are potentially hundreds of thousands of self-funders being denied needs assessment.

If local authorities cannot identify self-funders (above), on what basis can we possibly accept the suggestion in the same report that two-thirds of local authorities offer assessment to self-funders?[4] Acceptance of this local authority supplied figure, however, would suggest that tens of thousands of self-funders are being denied the assessment to which they are legally entitled.

The revelation of the Dilnot funding announcement

The first official acknowledgement of this gap in the provision of assessments was buried in the papers supporting the Government’s funding reform.

The Policy Statement (“the Statement”) [5] which accompanied the Secretary of State’s announcement on 11 February states that currently “many” self-funders have “very little contact, if at all, with their local authority” (para 27). It says that “in the new system people with care needs will need to contact their local authority, who will assess their needs and calculate the cost of meeting them” (para 28). Crucially, the Statement makes clear that the cost of the reforms includes “the cost of local authorities carrying out more assessments” (para 32) (all my emphasis). 

The Statement says that “the local authority will carry out an assessment (under clause 9 of the draft Bill)” (para 46) and that (as now, see above) such assessment will be subject to review (para 61/4).

In so far as is relevant, Clause 9 of the Draft Bill describes the threshold for an assessment of need in exactly the same terms as exists now under the Act described above.

The existence of a ‘cap’ creates an administrative need for spending on the meeting of eligible needs to be tracked (see para 67 of the Statement) (referred as a “care account” in para 69), but the question in these circumstances is obvious.

Given that the substantive legal duty to undertake an assessment under the Draft Bill will arise in exactly the same circumstances as it does now, why is it envisaged that there will more assessments of need under the new legislation than there are now?

Apart from the administrative ‘accounting’ requirement of the cap, the only explanation for the envisaged increase in assessments is that assessments that should be taking place now are not taking place.

What next?

Almost exactly two years ago, Ruth Cartwright, a BASW manager, said in response to similar concern about the plight of self-funders that “if councils started giving self-funders full assessments…that would increase everybody’s workload and they would need more social workers and care managers.” [6]

That scenario is exactly what is now likely to happen, but there are two problems.

Firstly, it appears that the increase in assessments for older people will occur not because of any substantive change in the law governing assessments but because of a need to record spending on care towards the new cap. This means that the right of older self-funders to have their needs assessed will remain vulnerable, for example, to delays in the ‘cap’ and/or changes in its administrative requirements.

Secondly, the ‘cap’ is not scheduled to be introduced until 2016 so we cannot expect the increase in assessments until then. In the meantime, self-funders who “may” need social services will almost certainly continue not to receive such assessments.

How should local authorities respond? 

Even if this gap in the assessment of self-funders is now clear, realistically, the options for ‘cash strapped’ local authorities are limited. Indeed, the pressure upon local authorities has increased in the last few days with the Chancellor bringing forward implementation of the ‘cap’ to 2016.

It is not possible, for example, for a local authority to discharge its assessment obligation by writing to all self-funders (assuming they could be identified) offering an assessment and hoping for a low take-up (R v Gloucestershire CC ex p RADAR (1997-98) 1CCLR 476).

The only way in which the assessment obligation can be discharged is by undertaking an assessment where a person “may” be in need of social services. Local authorities will say that they do not have the resources to do this. Apart from undertaking a rolling programme of assessment between now and 2016 (when they will be required to do it and, hopefully, have the funding to do so) the only constructive position for local authorities to take is to acknowledge their duty to assess when it is pointed out to them in an individual case.

How should self-funders and their advisers respond?

For the individuals concerned, and those advising them, the position is not as straightforward as it might appear. Rather than request an assessment to which they are entitled, many self-funders and their families will want nothing to do with their social services department. Others, who may not rule out such involvement in principle, will, nevertheless, not believe that there is any realistic prospect of securing an assessment or any services following from that.

I am not a social care or health professional. My reading and experience, however, suggests that there is nothing to be lost in having an assessment and possibly much to gain. There is no charge for an assessment, even for a relatively wealthy self-funder. An assessment may reveal needs of which the individual and their family is unaware or needs that left unaddressed will become more difficult and/or expensive to address later. An assessment may simply, but valuably, reveal ways in which an individual’s quality of life can be enhanced – perhaps without great expense.

I have seen self-funders pay for all sorts of services in order to meet needs, or merely ‘wants’. I have rarely seen such people pay for a professional assessment and yet this is a valuable service available free, almost on demand. It would certainly be a brave local authority that refused a request for an assessment from an older person in receipt of residential or home care.

Conclusion

Following the Secretary of State’s funding reform announcement, it seems clear beyond any doubt that very many self-funders are being denied the assessment to which they are legally entitled. It will be beneficial for many self-funders to seek such assessments of need and local authorities should promptly agree to undertake them.

Michael Furminger is a barrister specialising solely in Community Care Law. He can be contacted through his website at www.carelawbarrister.co.uk.