MANY PeOPLe WHO PAY FOR THeIR OWN sOCIAL CARe ARe BeING WRONGLY DeNIeD AN AssessMeNT OF THeIR NeeDs ARGues LOCALLY BAseD BARRIsTeR, MICHAeL FuRMINGeR.
“LOsT TO THe sYsTeM”
even if you pay for your own residential or home care, you are almost certainly entitled to have your social care needs professionally assessed free of charge by your local council. The problem is that many local councils are not complying with this legal obligation.
THe DuTY TO Assess The law says that a local council social services department should undertake an assessment of need for community care services where it “appears” to the council that a person “may” be in need of any such service. The courts have decided that the threshold created by the word “may” is a very low one. Potential need is what creates the duty to assess. Financial circumstances are irrelevant.
A LONGsTANDING CONCeRN Despite the clarity of the law, there has long been concern that many people entitled to an assessment do not receive one. There has been of particular concern for those paying for their own care. One official report described ‘self-funders’ as being “lost to the system”.
THe NuMBeRs OF PeOPLe INVOLVeD A recent report made the disappointing finding that most local councils do not know how many people in their areas pay for their own care. even if local councils’ own figures are to be believed, however, tens of thousands of mostly older people could be missing out on this crucial service – and that number is growing.
IT’s OFFICIAL until now, this injustice has been suspected by many in the field but never confirmed. The first official
acknowledgement was buried in the papers supporting the Government’s announcement of a ‘cap’ on the amount that anyone will have to pay for their social care. In order to keep track of such spending it will be necessary to know what people’s needs for social care are and because of this the Government acknowledged that more assessments will be necessary. If assessments were being properly carried out now this would not be the case because the legal description of when an assessment should be undertaken is not being changed.
WHAT sHOuLD YOu DO? It is unlikely that ‘cash strapped’ local authorities will change their general practice until they have to when the
there is nothing to be lost in having an assessment and possibly much to gain.
reforms to care funding are enacted in 2016. The onus will remain, at least until then, on people paying for their own care to request an assessment. some people who pay for their own care want nothing to do with their social services department. Others, who may not rule out such involvement in principle, will, nevertheless, not believe that there is any realistic prospect of securing an assessment or any services following from that. I am a lawyer, not a social care or health professional. My reading and experience, however, suggests that there is nothing to be lost in having an assessment and possibly much to gain. There is no charge for an assessment,
even for a relatively wealthy self- funder. An assessment may reveal needs of which no-one is aware and which, left unaddressed, might become more difficult and/or expensive to deal with later. An assessment may simply, but very valuably, reveal ways in which an individual’s quality of life can be enhanced – perhaps without great expense. I have seen self-funders pay for all sorts of services in order to meet needs, or merely ‘wants’ and yet assessment is a valuable service available free, almost on demand. It would certainly be a brave local authority that refused a request for an assessment from an older person in receipt of residential or home care.
CONCLusION Local authorities owe the same duty to assess the needs of those who pay for their own care as to those who do not. Many are failing in that duty.
If
you are paying for your own care but nonetheless feel that you may need social care services, you should not hesitate to ask your local council for an assessment of need. You should not be refused.
Michael Furminger is a Barrister specialising solely in Community Care Law. He can be contacted through his website at www.
carelawbarrister.co.uk
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