How likely does it need to be that a person who wants to be assessed for adult community care services from a local authority will actually be in need of them? That is the question posed in a new case decided today, NM, R (on the application of) v London Borough of Islington & Ors  EWHC 414 (Admin) (29 February 2012).
I wasn’t aware this was a new question. I thought I knew the answer. It was this: it doesn’t need to be very likely at all. It’s a low threshold test. Most excuses for not assessing are bad excuses for not assessing.
And I thought the answer flowed pretty inevitably from the wording of the Act:
…where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority-(a) shall carry out an assessment of his needs for those services…
There are two mays in there, and one shall. The two mays mean that the duty to assess remains even though you are uncertain firstly about whether you will need to provide services, and second about whether the service user will need them. The first uncertainty means it is no excuse to say, “it might be a different authority”; or “they might be financially ineligible”; the second uncertainty means it is no excuse to say “they might fall below the threshold of eligible need”.
Which makes perfect sense to me. You carry out the assessment to address the uncertainty. Once you have completed the assessment it stops being uncertain.
Today’s judgement seems to me to mangle the otherwise plain meaning of those words. The circumstances are as follows: NM is detained, awaiting parole, wanting to move back to Islington on release, and to assist in its parole decision, the Parole Board wants Islington to assess. Islington says there is no duty to do so, and the court agrees.
Sorry, this analysis is going to be tortuously legalistic for a bit, and it all centres on this paragraph of reasoning:
The critical question is whether the Claimant is the person who “may be in need of any such services” within the meaning of that phrase in section 47(1). In my view, on proper interpretation of that phrase, to bring himself within the scope of this section it is necessary for a claimant to show that there is a sufficiently concrete and likely prospect of him being in a position where community care services may need to be provided to him if he has relevant needs which would require to be met by the provision of such services. The words “may be in need” are in the present tense and do not import a flavour of coverage of possible needs which may arise in the future… In context, the word “may” is apt because it indicates that there has to appear to the relevant local authority a significant possibility that the person in question might have a present need for community care services to be provided to him by that local authority… [paragraph 77]
Looks wrong to me! The paragraph conflates those two different uncertainties, with worrying practical consequences. The first uncertainty is whether Islington is going to need to make provision; the second is whether NM is going to need services. The court thinks it is significant that “may be in need” is present tense. No, it’s not. Those words are to deal with uncertainty about need, not timing. NM has present needs. He’s not presently in Islington, but his needs are not speculative future needs, only his location is speculative and future. And location is dealt with by the first uncertainty, namely whether Islington is going to have to meet the need. Is Islington one of the contenders that may provide any services (first uncertainty) yes it is: it should assess his need. QED.
The conflation of the two uncertainties is apparent, embedded in the wording, if we tease it out:
The critical question is… “may be in need of any such services” … on proper interpretation of that phrase… it is necessary for a claimant to show… community care services may need to be provided… [my emphasis – from paragraph 77]
See? The judgement is saying may be in need (second uncertainty) means may need to be provided (first uncertainty).
The worrying practical consequences are that local authorities may refuse to assess need by second guessing whether they would have to provide anything. In the present case, by saying that his move to Islington is uncertain. By extension, if two local authorities dispute ordinary residence, both might use this reasoning not to assess (instead of assessing on the basis of possible future liability pending the dispute outcome). Or local authorities may apply the “likely prospect” of needing to provide as a new threshold test so as not to assess needs that are likely to be unmet or self-funded.
I can only hope that pending further judicial comment, local authorities will adopt a pragmatism borne of the Act and previous caselaw, and use assessments as a means to determine provision instead of using likelihood of provision as a means to determine whether to assess.
Allan Norman is a registered social worker and a solicitor at Celtic Knot.