Why you should ask for a review of your assessed needs and your care plan, sooner rather than later!

Under the Care Act, there’s a specific section all about monitoring of care and support plans, and the rules that apply to changing them. It’s section 27, and it’s the first time that the concepts of review and revision and re-assessment have been put into the statutory framework.

You may be an existing service user in a council where the threshold of neediness, applied by the council before the new law came into effect, was tighter or stricter than it is now, under the regulations which contain the mandatory approach to the concept of a level of need that no person should be left in, nationally, without social care funding or services. The criteria, when taken with the stretched definition of eligibility, and the focus on the person leading the exploration of consequential significant impact on their wellbeing, and interpreted as required by the Government’s Guidance, make the chances of being found to have eligible needs, greater, in my view. So the sooner you get yourself reviewed, the better.

Any such council would inevitably prefer that you leave it as long as possible, before you push for a reconsideration of your needs and rights, under the new system.

The reverse is true, of course, if a council used to operate on a more generous basis than the new criteria: in that case, a person would (him or herself) want to put off their review for as long as possible! And given the focus on cuts, which may mean that there is pressure to accept a smaller package even if one’s needs haven’t changed, and even if the eligibility regulations make no real difference to assessment outcomes locally, people might feel that they’d be better off holding out against being reviewed, for as long as possible. It is impossible to advise on a strategy, but necessary to think it through, in my view.

How long is as long as possible, then? On the one hand, you can’t refuse to be reviewed. It’s not the same as assessment first time round: you’re in receipt of public money and you cannot refuse to be reviewed. Getting anything at all, turns upon satisfying the council that a whole set of facts exists, and if you withhold your co-operation, it will mean that you might lose your services on the footing that the council is no longer satisfied you need any….

On the other hand, in theory, you might well hold out until April 1st 2016. The expectation under the old law (no more than an expectation) was for review at least annually, and the new law came into force on 1st April 2015. Therefore, the expectation is that everyone should have a scheduled review before April 1st 2016, at which point the old law can be repealed in full.

What matters is that when you ARE reviewed, your know your rights under the Care Act.

But for now, the old law subsists, and that means that your current services are provided under the old law, unless and until you are reviewed. (I haven’t seen anyone writing about what that means for charging law – logically, if you are receiving services under the old law, you are receiving services which cannot be charged for under the Care Act, but would still be chargeable under the old charging legal framework. But it is too late at night to think about that right now!)

Under the new law, a person has a right to be reviewed, upon making a reasonable request. You don’t have to prove that your circumstances have changed. You don’t have to do anything more than explain why you want one.

If your circumstances HAVE changed as a matter of fact (your condition has worsened, or your dependency has increased because something in your environment or your relationships has changed) you will be entitled to re-assessment because you will be presenting the appearance of need, in any event. But if your circumstances haven’t changed and you are thinking that you are eligible already, in more respects relating to inability to achieve outcomes than you were before, there is no obvious right on the part of the council to refuse to review your situation just because it’s not yet supposed to be your ‘turn’. ‘Nothing ventured, nothing gained’, should be the motto here, I think.

Under the new law, the council can revise a care plan without doing a full re-assessment to identify all the needs all over again from square one; that is, it can come up with new ways of meeting needs that haven’t changed, without that automatically being unlawful just because there’s been no s9 re-assessment. But the situations in which that will be possible, in practice, are limited.

For instance, if there is an argument about whether new needs need to be counted in, because of a change in the domains covered by the criteria, or factual new needs due to a change, there’s no way a person could be lawfully refused a proper re-assessment. The last one done may have focused only on unmet need, and now the Care Act guidance says that all needs, even met needs, must be considered for recording as eligible, regardless of informal free care and help from one’s own family. That doesn’t mean that the State has to pay your relatives, or provide for what they are willing and able to keep on doing for your benefit, because there is no legal duty to provide for what a carer is willing and able to do themselves – but it does mean that the WHOLE picture, and not just the shortfall, has to be recorded, and measured against the eligibility criteria.

If the council thinks (see s27 of the Act) that “circumstances have changed in a way that affects a care and support plan” (or a support plan for a carer) then it must do a proportionate re-assessment, whatever one of those might be!

I think that this means that a council can actually change the way in which it offers to meet need, without going back all the way to assessing needs from square one. It bothers me, during this initial period (coinciding with further cuts) when many people will be having their care plans reviewed, that many will not know that the criteria have changed, or not know that they are now entitled to written reasons as to why they are or are not regarded as eligible.

To be explicit, my concern is that if a council is reviewing people and offering new ways of meeting unchanged needs, and people don’t know that the criteria have changed, and don’t push for a proper re-assessment, it could be ages before anyone actually applies the new approach in the regulations to them; and it might be some years before they get a proper Care Act compliant care plan, if no-one is thinking ANYTHING does need to be changed in the current plan.

What is happening out there, in practice, please? Please share the local practice, and raise the profile of the review and revision provisions in the Care Act.

Belinda Schwehr

About Belinda Schwehr

Belinda has been a lawyer (both a barrister and then a solicitor advocate), a law lecturer at a university, and a trainer and consultant specialising in Adults' Social Care legal framework issues. She first became interested in social care law when the Gloucestershire case was running between 1995 and 1997, never having met a real live social worker, before that point! She regards social care as the most interesting field of law she has ever been associated with, combining aspects of public law, the regulation of power, economics, management skills, EU law, procurement, criminal law, incapacity law, land law and contract, and doesn't expect ever to tire of the stuff. If the Care Act is going to be the last word on it, however, she would like to think it was worth all that sitting there and getting fatter whilst thinking about how it should all hang together! She does glass craftwork and house renovations for a hobby, has one son in his twenties, and about 5000 online friends... soon to be 50,000, with any luck!

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