Community Care Solicitors — Care Act, NHS Continuing Healthcare, DoLS & Care Package Challenges

Under Care Act 2014 s.9, a local authority must carry out a needs assessment where an adult appears to have needs for care and support — regardless of the level of those needs and regardless of the adult's financial means. The duty to assess is universal: the LA cannot refuse to assess because it thinks the adult will not meet the eligibility criteria, or because the adult's needs are low, or because the adult has significant assets. The "appears to have needs" threshold is low — any indication of care needs triggers the duty to assess. A solicitor challenges unlawful refusals to assess — by pre-action protocol letter requiring the LA to carry out the assessment within a specified period, backed up by JR if the LA refuses.

NHS Continuing Healthcare (CHC) refusals can be challenged through the following routes: (1) Request for a review by NHS England — the ICB's refusal decision can be reviewed at a panel chaired by NHS England; (2) Parliamentary and Health Service Ombudsman (PHSO) complaint — if the NHS England review is unsuccessful; (3) Judicial review — if the PHSO provides no remedy or the decision is urgently unlawful. A solicitor prepares the CHC review with nursing expert evidence — including a fresh assessment of the Decision Support Tool (DST) scoring, identification of errors in the ICB's assessment, and a legal submission on the Primary Health Need test. The most common CHC errors: the "nature" and "intensity" descriptors in the DST were incorrectly scored; the adult's fluctuating needs (which may meet the "unpredictability" criterion) were ignored; and clinical evidence was given insufficient weight. A solicitor challenges CHC refusals at every stage.

Following the Supreme Court's decision in P v Cheshire West and Chester Council [2014], a person without capacity who is under "continuous supervision and control and not free to leave" is deprived of their liberty, regardless of the nature or quality of their care. That deprivation must be authorised under the Deprivation of Liberty Safeguards (DoLS — MCA 2005 Sch A1) or by the Court of Protection (where the person is not in a hospital or care home). Where a DoLS authorisation has been granted, the Relevant Person's Representative (RPR) or any other relevant person can apply to the Court of Protection under s.21A to challenge the conditions of the authorisation. A solicitor advises on whether the DoLS authorisation is lawful and represents the family in Court of Protection proceedings to challenge the conditions.

The council cannot reduce your care package without: (1) carrying out a formal reassessment of your eligible needs under s.27 of the Care Act 2014; (2) identifying, from that reassessment, that your eligible needs have reduced; and (3) updating your care and support plan accordingly. A reduction driven by budgetary pressure without a proper reassessment is unlawful. You have the right to participate in the reassessment and to be given a copy of the revised care and support plan. Where the personal budget resulting from the reassessment is insufficient to meet the eligible needs identified, it is unlawful (following KM v Middlesbrough). A solicitor advises on the reassessment process, challenges unlawful reductions, and — where urgently needed — applies to the Administrative Court for an interim injunction preventing the reduction pending the JR.

The courts generally expect a claimant to exhaust the local authority's internal complaints procedure before pursuing JR — unless the complaints procedure is unlikely to provide an adequate remedy or the matter is urgent. The LA's adult social care complaints procedure is a statutory process under the Local Authority Social Services and NHS Complaints (England) Regulations 2009. Where the LA's complaints procedure does not provide a remedy, a complaint to the Local Government and Social Care Ombudsman (LGSCO) is typically the next step. JR is available where: the complaints procedure is inadequate (for example, where urgent care is at risk); the LGSCO has not provided a remedy; or the legal issue cannot properly be resolved through the complaints process. A solicitor advises on the sequencing of complaints and JR — and where the matter is urgent, can apply for interim relief via JR without exhausting the complaints process first.