Cuts to individual care packages - what's a lawful and what's an unlawful assessment?

With the Government’s recent announcement of further public spending cuts, anybody receiving social care or working in the care sector will be understandably concerned about what this means for them. 

Many will remember the previous ‘austerity’ measures brought in from 2010, which taught us that it's often the most vulnerable who are reliant on public services who are the hardest hit.

Social care cuts can take many forms and it can be easier to identify (and oppose) cuts which affect lots of people, such as service closures. However, reductions in individual care packages can also be extremely damaging to those affected. It can also be harder to keep track of these more numerous, ‘smaller’ cuts, and therefore harder to ensure that the law has been followed. It's not uncommon for cuts to be made unlawfully. The only way to stop them is to challenge them.

What the law says

Numerous High Court cases have upheld individuals’ legal rights to lawful care packages. Under the Care Act 2014 local authorities must provide services that meet a person’s eligible care needs. To assess whether someone has eligible care needs, it's necessary to look at whether they can do certain basic things for themselves, such as washing, dressing, preparing meals, and keeping their home safe and clean. 

If a person cannot do two or more of these things, safely and without support, then their local authority has a legal duty to provide care to enable them to do the things they can’t do on their own.

Where someone is already receiving care services, this cannot be reduced without a lawful assessment being undertaken which shows that they no longer need as much care. For example, if Mohammed has been assessed as needing 25 hours of care per week to help him shower, get dressed, prepare meals, clean, do laundry and food shopping, the local authority cannot say he only needs 10 hours of care unless they've carried out a new assessment which shows that 10 hours of care will meet these needs, or they can show that his needs have reduced.

A lawful assessment

A lawful assessment must accurately reflect everything a person needs support with. A lawful assessment mustn't assume that a family member will help with something (it's ‘carer blind’), and it needs to take into account things the person wants to be able to do in their life (e.g. go to college or work). 

A lawful assessment also gives the person all the help they need to understand and take part in the assessment. For some this will mean having somebody with them during the assessment, e.g. a family member or an independent advocate.

Local authorities must also continue to carry out social care assessments for those not yet receiving care. The law says that if it appears a person may need care and support, they're entitled to an assessment to see if they're eligible. This threshold is deliberately low, so it shouldn't be difficult to get an assessment. A refusal to carry out an assessment is likely to be unlawful.

An unlawful assessment

A local authority not having enough money to keep, or start, providing care is never a lawful reason for them to cut or refuse care altogether. A local authority can take into account cost when deciding how, but not whether, to meet a person’s eligible care needs - i.e. they can choose the cheaper of two options if both options meet needs, but they cannot choose an option that doesn’t fully meet needs just because it is cheaper.

The law sets rules that must be followed by a local authority when they assess and meet someone’s care needs. Funding cuts don't change this, and if the law hasn't been followed the cut can be challenged.

Challenging cuts

Irwin Mitchell has significant experience of representing clients in challenging unlawful assessments and cuts to their services. Case examples:

• M had her care package reduced by 26 hours a week from 70 to 54 hours a week. A legal challenge was launched under the judicial review process with the council and NHS ICB who were funding M’s care package on the grounds that the cut was made without a proper reassessment and there was a failure to properly take into account the family’s inability to provide care. The care package was maintained at 70 hours a week and a revised assessment was carried out.
• In 2018 Northamptonshire County Council proposed to close 21 of its 36 libraries, which also housed children’s centres. Our client, WX, was a child whose mother sought to challenge the council’s plans on the grounds that they'd failed to properly consult with residents, and that they'd failed to meet other legal obligations including those in relation to disabled children.The court found that the council’s decision-making process had been unlawful, and invited the council to take the decision again, bearing in mind their legal obligations. 

If you're worried about cuts to support for you or a family member or local services, more information is available at Irwin Mitchell's dedicated protecting your rights section.