"No authority could be
compelled to provide supervision or facilities that did not exist"
Itīs an interesting point isnīt it, that as long as a local authority
chooses not to set up facilities, it is not obliged to offer them, whereas
once it has set up a system, then it is obliged to provide it. Under this
basis, I live in a county which does not provide respite facilities for
parents of children with learning difficulties, and I can cite cases which
I have been involved in where children have been taken into care after
parents have suffered mental breakdowns after years of pleading for help
and receiving nothing due to the point above.
Hazel
> Colin
>
> You were advised by the Judge to seek Judicial Review but you must be
> aware of existing caselaw where, although Section 47 of the National
> Health Service and Community Care Act 1990 places a duty on local
> authorities to carry out an assessment of a service users need for
> community care services where it appears to the authority that a person
> for whom it may provide or arrange for the provision of community care
> services, may be in need of such services. The authority must then decide
> whether the needs 'call for' the provision of services, having regard to
> the results of the assessment
> In the House of Lords case ex parte IH it was held that no authority could
> be compelled to provide supervision or facilities that did not exist. The
> following ruling is important because there is discretion and resources is
> an important factor for a local authority not to perform duties so be
> careful where you continually write "my basic human and civil rights".
>
>
> R (on the application of Heffernan) v Sheffield City Council
> QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
> [2004] EWHC 1377 (Admin),
>
> "Local authorities shall, in the exercise of their social services
> functions,
> including the exercise of any discretion conferred by any relevant
> enactment, act under the general guidance of the Secretary of State."
>
> [11] The guidance commences with what is called an "Overview". This
> establishes a distinction between "presenting needs" and "eligible needs".
> This is explained in paras 2 and 3 which read:
>
> "2. A fundamental aspect of this guidance is for individual councils to
> make only one eligibility decision with respect to adults seeking social
> care support; that is, whether they are eligible for help or not. This
> decision should be made following an assessment of an individual's
> presenting needs. Councils should not operate eligibility criteria for
> specific types of assessment; rather, the scale and depth of the
> assessment should be proportionate to the individual's presenting needs
> and circumstances. Neither should councils operate eligibility criteria
> for different services to meet eligible needs. The most appropriate and
> cost-effective help should be determined by matching services to eligible
> needs through the use of statements of purpose.
>
> 3. Councils should assess an individual's presenting needs, and prioritise
> their eligible needs, according to the risks to their independence in both
> the short- and longer-term were help not to be provided. Councils should
> make changes in their practices to take a longer-term preventative view of
> individuals' needs and circumstances. With regard to their resources and
> other local factors, councils should focus on those in greatest immediate
> or longer-term need."
>
> The manner in which the distinction is to be identified is dealt with
> later
> in the guidance. Essentially, the correct assessment of the needs which an
> individual has and which can be described as his presenting needs is the
> key to the whole exercise. Those presenting needs must be fully explored
> so that their extent is properly understood and evaluated. Paragraph 40
> summarises what is required thus:
>
> "As presenting needs are fully described and explored, the individual and
> professional should consider and evaluate the risks to independence that
> result from the needs both in the immediate and longer-term. This
> evaluation should take full account of how needs and risks might change
> over time and the likely outcome if help were not to be provided. The
> evaluation of risks should focus on the following aspects that are central
> to an individual's independence:
>
> Autonomy and freedom to make choices.
>
> Health and safety including freedom from harm, abuse and neglect, and
> taking wider issues of housing and community safety into account.
>
> The ability to manage personal and other daily routines.
>
> Involvement in family and wider community life, including leisure,
> hobbies, unpaid and paid work, learning and volunteering."
>
> The guidance goes on to consider how eligible needs should be determined
> following an assessment. I should cite paras 42 to 44 which deal with
> this. They read:
>
> "42. Eligibility for an individual is determined following assessment. As
> part of the assessment, information about an individual's presenting needs
> and related circumstances is established, and should be recorded. This
> information is then evaluated against the risks to his/her autonomy,
> health and safety, ability to manage daily routines, and involvement in
> family and wider community life. Councils may wish to facilitate the risk
> evaluation by asking their professionals to identify risks using the
> framework in paragraph 16 above. These identified risks to independence
> will then be compared to the council's eligibility criteria. Through
> identifying the risks that fall within eligibility criteria, professionals
> should identify eligible needs.
>
> From you postings Colin has been one stark omission - what are your
> eligible needs? Basically you do not have a 'right' to services because a
> care plan is resource led rather than needs led which has continually been
> upheld by both the Court of Appeal on judivcial review. There will always
> be a gap where services will be prioritised. A council is only legally
> obliged to provide services where a person has been detained under
> section3 of the Mental Health Act 1983 and a CPA under section 117 has
> been formulated.
>
>
>
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