Making a decision whether you are eligible for support
Although the assessment should identify all your needs for care and support, the local authority will only have a duty to meet your eligible needs.
Although the assessment should identify all your needs for care and support, the local authority will only have a duty to meet your eligible needs. They can meet other needs if they want to. The law sets out the criteria for local authorities about which needs they have a duty to meet. You will not be involved in decision-making at this stage, but they have to let you know what their decision is.
How the local authority decides which needs they have a duty to meet
To be eligible for support you must meet three requirements:
- Your needs must be the result of a physical or mental impairment or illness;
- As a result you must be unable to achieve two or more of the outcomes, see below;
- As a consequence there is likely to be a significant impact on your daily life, independence and well-being.
Eligibility criteria outcomes
Below we list the outcomes that are used to make decisions about eligibility. The law says you must be unable to achieve at least 2 of the outcomes below for your need to be eligible. However, not achieving an outcome doesn’t mean you must be completely unable to do it.
The law says the local authority cannot say you are able to achieve the outcome if you are only able to do it with support, if it takes you much longer compared to non-Disabled people to do it, if doing it yourself causes pain, stress or anxiety or if doing it puts you or others at risk.
If your needs change on different days, the local authority must look at them over a long enough period.
The list of outcomes
- managing and maintaining nutrition;
- maintaining personal hygiene;
- managing toilet needs;
- being appropriately clothed;
- being able to make use of home safely;
- maintaining a habitable home environment;
- accessing and engaging in work, training, education or volunteering;
- making use of necessary facilities or services in the local community including public transport, and recreational facilities or services;
- carrying out any caring responsibilities for a child.
Challenging a decision about eligibility
If you want to challenge a decision about which needs your local authority has a duty to meet, you need to focus on explaining why you cannot achieve certain outcomes reliably, and why this need has a significant impact on your day to day life and wellbeing.
Despite the fact that the Care and Support Guidance says that local authorities should give a copy of their eligibility decision, it happens rarely. In order to challenge the decision you need to understand the reasons behind it. It is also helpful to get a copy of your needs assessment. Ask your social worker or send a subject access request to get those documents.
Think of the following questions
- Do your needs prevent you from achieving the set outcomes?
- Can you do it without support,
- Does it put you or others at risk and was that risk underestimated?
- Does it cause you pain, stress or anxiety?
- Was the impact of your needs on your wellbeing underestimated?
Often wrong eligibility decisions are based on the assessments which did not reflect all the needs or the impact of those needs on wellbeing correctly. If this is the case, you need to challenge the assessment as well.
Making a formal complaint
Each local authority should have a complaints procedure. Ask for a copy of it. If you need this document in alternative formats make sure you let them know. Providing a policy in alternative formats should be considered as a reasonable adjustment under the Equality Act 2010. Complaints are usually investigated by a different person to the one whose actions or decisions you are complaining about. They will usually ask a person concerned to explain their actions or decisions, check if they are reasonable and communicate their opinion to you.
When making a complaint you should:
- Make it clear this is a formal complaint and ensure it is registered as such.
- Set out the facts and be clear what you are complaining about. Is it about a decision, or the way you have been treated?
- Set out the law or local policy and explain how the local authority did not follow it.
- Say what you would like to be done as a result of this complaint: a decision to be changed, an apology or a change in practice.
When thinking about the outcome you want to achieve, think about possible wider implications of your complaint: if other people are likely to be affected by the issue you are complaining about, or if it is possible to do something to prevent the same problem from happening again.
Examples of wider outcomes
- Asking the local authority to publish information on its website or to change the wording of the information it already has
- Asking to make changes to their policy or practice
See The Public Law Project’s guide Making an Effective Complaint to a Public Body for more practical tips about making a complaint.
If you are not happy with the response to your complaint
If you are not happy with the outcome of your formal complaint you normally have 2 options available to you: the local government and social care ombudsman or legal action. We consider both of those processes below in greater detail. It is worth noting that you might be able to start legal action without having to go through complaints procedure.
What they can consider: Complaints about maladministration: where the local authority did not follow its procedure, delays.
Time limits: 1 year
Risk and costs: free
Representation: People usually represent themselves or are represented by advice and advocacy organisations
Outcome: Ombudsman cannot enforce its decisions, but usually local authorities agree to implement them. Ombudsman can make decisions about individual cases and policies. Decisions are not an authoritative interpretation of the law, but can be used to support the argument in future complaints
Key advantages: Free, accessible, can consider a wider range of cases compared to judicial review proceedings. Can make recommendations to change policy.
What they can consider: Whether or not the decision or failure to act was lawful. Did the local authority follow the procedure set out in law. Did it consider all the factors it must consider. Did the decision breach your human rights. Was it discriminatory
Time limits: As soon as possible and no later than 3 months from when the decision was made.
Risk and costs: Judicial review is costly, but some people can get legal aid, which will pay for all the costs
Representation: People are usually represented by solicitors
Outcome: Can change policy, can have an impact on other individuals in the same situation. Local authorities must obey decisions made by courts.
Key advantages: Decisions made by courts can help to change policy or practice beyond the respondent in the case. You get better quality of representation and much higher scrutiny of the decision or the policy.
Courts can make interim orders, for example order to keep your support in place before final decision is made or to put support in place urgently.
Local government and social care ombudsman
An ombudsman is a person appointed to investigate complaints in a particular area of public body decision-making. Their service is free, independent and impartial. A complaint to an ombudsman could be a way to resolve an issue. An ombudsman does not have the power to force a local authority or a social care provider to change its decision, but their recommendations are usually followed.
The Local Government and Social Care Ombudsman (LGSCO) can investigate complaints about the decisions, actions or inactions of local authorities. It can also investigate complaints about private care providers, such as care agencies, care homes, etc., even in cases when a person pays for their care. If a package is funded by both the local authority and the Clinical Commissioning Group, you can still complain as the LGO has a joint team with the Health Service Ombudsman. So both aspects of your complaint will be considered and you will have a single point of contact.
You cannot complain to the ombudsman before you go through the local authority’s complaints procedure. You have to complain within 12 months of the original decision.
You have to be personally affected and experience an injustice. If your particular problem has been resolved by a local authority but you want them to make a bigger change, the ombudsman may decide not to investigate your complaint.
There are a variety of ways to start a complaint, including by phone, via email, filling in an online form or by post.
The ombudsman will investigate complaints when there is a maladministration – a fault by the council or another organisation and which results in you experiencing an injustice. Examples of such situations include:
- A local authority did not follow the law or its own policies,
- A local authority took too long to act or make a decision,
- A local authority did not follow the right process when making a decision, for example did not involve you in the assessment and care planning process or review or did not give you information you were entitled to know.
How will a complaint be investigated?
The case is allocated to an investigator, who will look at all the documents, contact you and speak to the organisation that supports you. They may ask for additional information, and will then contact the local authority and ask for their view. After gathering all the necessary information the investigator will draft a decision, and ask for your comments before reaching a final decision. They will usually send you copies of the local authority’s written responses, but will not necessarily pass minutes from their phone conversations with them.
The decision of the ombudsman is final; however, if you can prove that it was based on factually incorrect evidence or you have important new information which is relevant to the case, you could ask for a review. Decisions of the ombudsman can be challenged through a judicial review if they are legally incorrect, or the decision was taken unlawfully.
The ombudsman publishes its decisions on its website, although these are made anonymous.
Taking legal action
When a public body has acted unlawfully or their decision/action breaches human rights, this can be challenged through a legal action. This could either be done through a process called Judicial Review or by bringing a legal action under the Human Rights Act. Since the Human Rights Act applies to private care providers it can also be used in private legal actions against them.
Judicial review is a process in which the judge will look at the lawfulness of a decision, action or inaction of a public body, this includes the local authority’s decisions about social care. The judge will assess whether the law has been applied correctly and whether a public body followed the right process. The court plays a supervisory role: it won’t determine whether a decision was right or wrong based on the facts. The court can overturn a decision, order the local authority to take a certain action or prohibit it from making a certain decision or taking action. The court can also ask the local authority to take certain actions until the case is resolved, for example put the support in place or keep existing levels of support, while a cut to support package is disputed.
For more information about Judicial review see the Public Law Project’s guide: An introduction to Judicial Review
Sometimes the local authority’s decisions about your social care support will have an impact on your human rights. Find out more information about your human rights and how they are relevant to your social care support in our Human Rights Guide.
When considering legal action it is worth thinking about the following things:
- Time limits: There are strict deadlines for starting a legal challenge. For judicial review it is 3 months and for breaches of human rights it is 12 months from the date of the decision. Is your case still within those time limits? It is also important to remember that lawyers will need time to investigate the case.
- Funding legal advice: would a person you support qualify for legal aid? Are there other sources of funding? If a problem is widespread and a particular person cannot get legal aid, you could look for another person in similar situation.
- How serious the situation is: although it may take a long time for a case to get to court, it may be possible for lawyers to secure an interim solution while the case is being considered.
It is also important to remember that not all cases reach court. Sometimes the involvement of solicitors can help to resolve the issue or clarify the situation.
If you decide to contact a solicitor, it is best to approach solicitors who specialise in community care. You can check the list on our website for solicitors who specialise in advising Disabled people. You can also use Find a Legal Aid Advisor tool on the Gov.uk website to find a solicitor who can give advice for people eligible for Legal Aid or Find a Solicitor on the Law Society’s website.