Assessment of your care and support needs

The Care Act says that the local authority must assess the needs for care and support if it appears that an adult may have needs for care and support.
The threshold is very low, so it should be relatively easy to get an assessment. You can request an assessment by contacting your local authority’s adult social services department.

What is the assessment of needs?

The assessment is a process by which the local authority, usually through social workers or assessors establishes the following:

• Your care and support needs
• The outcomes you wish to achieve
• The impact of those needs on your wellbeing
• Whether and how much the provision of support could help you to achieve those outcomes.

By law, the assessor must listen to you and start with the assumption that you know your needs best, however final decisions about your needs are made by social workers or assessors.

The process

The local authority should give you information about the assessment as early as possible in an accessible format. The assessment usually involves a face to face meeting with you and sometimes in addition gathering information from other people, including your carers and professionals, such as occupational therapist, physiotherapists, medical professionals. Sometimes instead of meeting face to face, the local authority could offer talking to you on the phone or ask you to fill in a form.

You can ask for a supported self-assessment, where you effectively will stand in the assessor’s shoes and identify your needs, outcomes and impact on wellbeing. You will fill in a form which then will be checked by a social worker. Some people feel that supported self-assessment allows them to better describe their needs in their own words.

The local authority should send you assessment questions in advance of a meeting and it should take into consideration your preferences with regards to the timing, location and medium of the assessment. You can ask anyone you want to be present at the meeting to support you.

The assessment should be carried out within reasonable time. The assessor should have appropriate skills and knowledge to assess your needs. The local authority should make sure all communication during the assessment accessible to you.

You must be given a copy of the assessment report. It is important to check it and ask for corrections if information recorded is incorrect. You should also query with the social worker or the assessor any points that you disagree with.

What rights you have during the assessment process:

• To have an advocate commissioned by the local authority if you have substantial difficulties being involved in the process and there is no one around who could support you.
• To have someone present at the meeting to support you;
• To ask the assessor to talk to professionals or other people you have chosen.
• To be involved in the process
• To get a copy of the assessment report.

Tips to get it right

The assessment is a very important document. You will not get an adequate support plan if your needs are not identified correctly.

• Talk about all needs even those met by carers or even when they seem insignificant. Little things add up;
• Explain how your needs affect your well-being;
• Make sure you emphasise the worst risks that might happen if your needs aren’t met – don’t just think about how you are on a good day;
• Prepare: get the assessment questions and think of answers in advance;
• Think about evidencing your needs, are there any professionals who could support what you are saying?;
• Make sure all your communication needs are met;
• Bring someone to a meeting who knows you and can speak up if needed
• Get a copy of the assessment and correct it if needed

Challenging the assessment

Although the assessor has to involve you in the process and start with the assumption that you know your needs best, the assessment is an objective process, where local authority decide what your needs are. If you disagree with what the assessment says, you should raise it with the social worker or the assessor and ask them for reasons.

The questions below will help you to identify whether and how you can challenge the assessment:

• Did the assessor have skills and knowledge to assess your needs? ask them what skills, knowledge and experience they have.
• Did they involve you effectively? Were your access needs met?
• Can you argue that you should have been given an independent advocate?
• Did the assessment record all your needs?
• Does it include information about the outcomes you want to achieve, the impact of needs on your wellbeing and how the provision of support could help to achieve the outcomes?
• Is there evidence that the assessor took your views and your individual circumstances into account, and if not is there an explanation why?

The process of challenging the assessment

You should try and challenge as quickly as possible. Raise the issue initially with the social worker or the assessor. It is important to give them a deadline to respond. If the issue has not been resolved or there is no response, you should make a formal complaint, using local authority’s complaints procedure or consider legal action, see below.

Collecting evidence

When challenging your assessment you might need evidence to support what you are saying. It could be evidence of your needs, or the impact of those needs on your wellbeing. This may be reports from other professionals, statements from people around you. Sometimes local authority commissions reports from other professionals during the assessment process. It is useful to get a copy of those reports.
You can ask the local authority to give you the evidence you need. For example, ask for copies of the reports or ask for qualifications of the person who assessed your needs. You can also use the rights you have under the Data Protection legislation to ask for copies of the documents.

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, 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 generally 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 a complaints procedure.

Ombudsman

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.

Judicial review

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 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 on 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, including 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 right 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.

Further information

The Law Society’s Using a solicitor guide
For a list of solicitor firms, who are experienced in offering legal advice to Disabled people See a list on our website