Judge rules against council on meaning of 'needs' for Care Act assessment

An assessment carried out by a London borough did not constitute a discharge of its duties under the Care Act because it failed to include all the individual's needs, whether currently being met or not, a judge has ruled.

The claimant in Antoniak, R (on the application of) v Westminster City Council [2019] EWHC 3465 (Admin) was a national of Poland, born in 1980. He came to the UK in 2013 and worked as a painter-decorator for about four-and-a-half years. He has not been able to work since some time in 2018.

The claimant became homeless and was diagnosed as a person who appeared to be suffering from acute psychotic episodes characterised by paranoid delusions and auditory hallucinations, apparently partly brought about by the stress of homelessness.

On 5 August 2018 he was involved in a serious road traffic accident, when he was run over by a coach. He was an in-patient at a hospital for several months. Since his discharge he has used a wheelchair for all mobility requirements.

Following his release from hospital, the claimant was accommodated by Westminster for a short period of time and subsequently by a charity, Routes Home, in a hostel.

Whilst the claimant's solicitor and the city council tried to reach some agreement over what Care Act Assessments should be made and by whom, Westminster continued to pay for the claimant's accommodation.

Following a grant of indefinite leave to remain, the claimant applied on 22 May 2019 to the defendant's housing department for assistance under Part VII of the Housing Act 1996. He was provided with temporary accommodation from that date in premises in the London Borough of Islington.

The recommendation from the assessment carried out by Westminster was that the claimant did not have any Care Act eligible needs, and that the needs he did have could be met by existing voluntary or private sector agencies.

In the High Court Mr CMG Ockelton, Vice President of the Upper Tribunal, said that at the heart of the difference between the submissions of the claimant and of the defendant was the question of the meaning of the word ‘needs’ in part 1 of the Care Act.

“There is no definition in the Act itself, and no decided authority appears to cover it. The defendant's defence of the lawfulness of the claimant's needs assessment and determination of eligibility depends on an interpretation of the concept of ‘need’ as excluding, or potentially excluding, a need which is being, or is readily capable of being met. It is only in that context that an assertion that, for example, the claimant did not need anything from the defendant because his needs were being met could be of any relevance.”

The judge said the question was, therefore, whether a needs assessment, as envisaged and prescribed by the Care Act, was an assessment of what an individual needs in addition to such assistance as he is receiving at the moment, or whether the assessment should be made without regard to existing help and support.

“To put that another way, is a need that is being met still a ‘need’? That issue is clearly arguable, and merits the grant of permission,” Judge Ockelton said.

He added: “Bearing in mind that the purpose of the assessment appears to be to identify the proper scope for help and support to be provided by local authorities, the answer to the question is not perhaps entirely obvious, but in my judgment, it is clear both from the structure of the Act itself and from assumptions which might be made about the general utility of the assessment process, that the word ‘needs’ is to be interpreted in such a way as to ignore any existing way in which needs are being met.”

The judge said the primary duty was that under s.9, to make the needs assessment. It was only after the needs assessment had been made that the question of eligibility arose under s.13, and only after that that the duty under s.18 (or the power under s.19) to meet the needs arose.

“The first thing to notice is that if the assessment and needs excluded needs which are being met, the process would be circular: by carrying out its duty to meet the needs under s.18, the local authority would be invalidating the needs assessment, because the needs identified would no longer be ‘needs’. That would be by itself a powerful reason for thinking that 'needs' must include needs which are in fact being met,” Judge Ockelton said.

“Even if that particular circularity is disregarded, there is a difficulty if ‘needs’ does not include needs which are being met. Suppose that, in the case of particular individual, the current position is that the local authority is meeting a particular need. It would then cease to have any proper place in the needs assessment.

“The difficulty then would be that, if the need was not in the needs assessment, the local authority would not be able to derive from Part 1 of the Care Act either a duty or a power to expend money on satisfying the need. If a need is not in a needs assessment, the need cannot meet the eligibility criteria (because, by s.13(1), the determination of eligibility has to be based on the needs as assessed) and so would not be subject to either the duty or the power under ss.18 and 19.”

The judge added that although the regulations could not of themselves modify the meaning of terms in the Act, it was clear that the regulations envisaged the identification of needs independently of the way in which they might be being met, something that was apparent from reg 2(3). “If needs which were being met were not 'needs' of the sort that ought to feature in a needs assessment, it is difficult to see that paragraph 3 would be required.”

Judge Ockelton said there was an additional reason why, in his judgment, a needs assessment should be treated as relating to an individual's needs regardless of the way that they might be being met.

“Part 1 of the Care Act makes the individual, and the individual's wellbeing, the starting point of the delivery of such services as are required. In this context it would be surprising if a needs assessment were not also intended to be primarily about the individual, rather than merely about some residuary part of an individual's needs that were not currently being met,” he said.

“Finally, if needs that are being met are not ‘needs’ for the purposes of a needs assessment, there would need to be a new needs assessment (not a new or revised Care and Support Plan) at any time when a need began to be or ceased to be met. But although there are provisions in s.27 for review of the Care and Support Plan arising from the needs assessment, there are no provisions for regular or incidental revision of the needs assessment itself.”

The judge added that this point appeared “starkly” in s.37, which deals with the situation where the adult who is subject to the needs assessment moves between two local authorities, so that the support being provided by the first local authority is likely to cease.

“In those circumstances, the section provides for the second authority to obtain the relevant documents from the first authority and to assess whether the individual has needs for care and support, but s.37(8) makes it clear that that new assessment is not itself a ‘needs assessment’, although the same provisions apply to the new assessment as apply to a needs assessment.”

Judge Ockelton said: “In other words, it is clear from the structure of the Act and its individual provisions that the ‘needs’ that are assessed in a needs assessment are the needs arising from the individual's own identity and characteristics, whether or not they are, at the time of the assessment, being met.

“It follows that a needs assessment will not fulfil the requirements of s.9 if it does not include all the individual's needs, whether currently being met or not. It follows also that the determination of the eligibility criteria will not fulfil the requirements of s.13 unless the eligibility of needs currently being met is determined, as well as the eligibility of unmet needs.”

The judge said that in the present case, the form used by the assessor gave every possible assistance in carrying out the task as he had decided that it should be carried out, that is to say that each answer about needs was to be given "as if there is no support currently in place". “When that was done, the assessment was that the claimant was unable to achieve three of the outcomes specified. For the purposes of eligibility, the only remaining question was whether as a consequence of that there was, or was likely to be a significant impact on his wellbeing. That question is answered in the negative at para 17.2 of the assessment, but then details of the impact on the claimant's wellbeing are given at 17.3, and at the end of the ‘summary/overview’ at 17.4, is the statement that the needs the claimant does have can be met by existing voluntary or private sector agencies. It is clear from the supporting text that amongst the claimant's needs are ‘support with cleaning and maintenance, and meal preparation’, on which the assessor says ‘he currently has no needs in this area’.

“But the reason for that, as the other entries on the form, and indeed the defendant's submissions, made clear, is that those needs were being met in the accommodation in which he was at the date of the assessment. That was not, in my judgment, a lawful assessment of his eligible needs, because the question of impact on his wellbeing should have been made without regard to the way in which needs were being met at the date of the assessment.”

Judge Ockelton said that he therefore agreed with the principal element of the claimant's claim. “The assessment under challenge did not constitute a discharge of the defendant's duties under ss.9 and 13 of the Care Act.”

In relation to remedy, the claimant sought a declaration that the conclusion in recommendation of the assessor in the assessment on 8 May 2019 was unlawful.

The judge said: “I think, as indicated above, that the appropriate wording is more accurately that the assessment did not discharge the defendant's duties to the claimant under ss.9 and 13 on that date but, subject to that, the declaration will be granted.”

The claimant also sought a mandatory order compelling Westminster to draw a Care and Support Plan and to provide the claimant with care and support forthwith.

However, the judge said that for a number of reasons, it would not be appropriate to grant that remedy. “The most obvious reason is that as there is no valid needs assessment, there can be no Care and Support Plan: a Care and Support Plan emerges out of the identification of eligible needs following a needs assessment. In any event, however, it is by no means clear that the defendant currently has a duty to the claimant under the Care Act, because of his having been housed in Islington. I therefore decline to grant any other substantive remedy.”

The judge said he wanted to make it clear, however, that he did not regard these proceedings as having been rendered academic by the claimant's move. “Because of the provisions relating to those with care needs who move local authorities, the status of the assessment under challenge needed to be established even if the defendant has no continuing obligations under the Care Act.”