This is the final post in my series about Care Act needs assessments. So far we have looked at the actions to be taken at first contact with an individual, the eligibility criteria and the need for the process to be person-centred, appropriate and proportionate. This last post will explore one of my favourite topics: record-keeping. Whilst many issues can be avoided by a sensitive approach, because individuals are much less likely to bring a challenge if they feel like they have been treated fairly in the process, in the event of a legal challenge, it will come down to record-keeping and evidence. It will be necessary to show a court that the practitioner who carried out the assessment did follow the regulations and the statutory guidance.
If you read the leading judgements on assessments and support plans under the Care Act 2014, the write up of the assessment and the clarity of the professional’s rationale has been the difference between a defensible position for the local authority, and a successful challenge by an individual.
Davey v Oxfordshire is the most well-known of the cases, and the reasoning the practitioner gave for concluding that Mr Davey could spend time alone is a brilliant example of what should be recorded in assessments and support plans. Mr Davey stated that he wanted to increase his independence, and the practitioner was reasonable to conclude that spending time alone would help him achieve that aim.
I also often refer to the case of MG v London Borough of Brent  EWHC 1777 which for some reason I can never find on bailii but it is available in through the usual legal research tools.
It is another good example of an authority being able to evidence that it has acted appropriately. In that case, the practitioner had clearly recorded inconsistencies in the information provided, For example, some of the information was provided by MG herself, much of it came from her husband. He stated, for example, that MG could not be left alone in the house because she would be at risk of harming herself, yet the practitioner observed knives being left out on counter tops whilst she was in the kitchen. An advocate and an interpreter were instructed, to separate the husband’s views from MG’s own. The court ultimately agreed with the local authority and the claim did not succeed.
These cases can be contrasted with the JF v Merton case where the professional rationale and processes followed were not clearly evidenced.
And I am going to let you in on a secret, the practitioners from Oxfordshire and Brent didn’t convince the court through witness statements alone. Lawyers can help write witness statements, but they are always prepared with the benefit of hindsight. So an explanation of reasoning given after the fact doesn’t carry much weight with a court. But clear recording in the assessment itself carries a lot of weight, because it demonstrates that these issues were on the practitioner’s mind at the time they were making decisions and recommendations. Where that is supported by contemporaneous notes of professional reasoning, well, judges tend to find that pretty persuasive.
In fact, generally, judges would look to defer to a social worker on a social work decision. They are experts in their field, but won’t be quick to disagree with an expert qualified on another. They have to be given a reason to find a flaw in the decision-making, and that has to come from the processes followed. For example, it is beyond the scope of judicial review proceedings for a judge to say that the social worker made the wrong decision. But it is possible for the court to say that the social worker reached the decision in the wrong way, by ignoring relevant information, applying the wrong test. That’s where claims are made, that’s where the focus needs to be.
Sometimes, a professional has prejudged a situation, or let their like or dislike of someone interfere with what they have done, whether consciously or not. Sometimes they are under too much pressure, and that leads to corners being cut. Sometimes they just aren’t very good at their jobs (although hopefully not very often)
And sometimes the views of the person and the views of the practitioner don’t match up for perfectly valid reasons. There are any number of situations why that could be the. case, and not all of them involve bad faith (although sometimes they do).
For example, I once advised on a case where the individual being assessed stated they needed support with all activities of daily living because they regularly fell asleep during the day and could not be woken, and would not have the energy to cook, shop, clean etc. Yet when the practitioner spoke with their GP, the GP did not corroborate these needs, and stated that in their opinion what the person needed was a more regular sleeping pattern and mental health support for what was, in layman’s terms, a chronic case of hypochondria.
I’ve also had a case where an individual stated they could not walk unaided, but CCTV in their building often captured them walking in and out with their shopping. That person was also visiting their partner at weekends and acting as their carer, but still insisting that they themselves could not manage safely in the home. I never got to the bottom of what was going on there…
The point of this being that sometimes, despite a practitioner doing everything they reasonably can to reach agreement with the individual (or their representatives) a mismatch exists that cannot be rectified. And in those cases the best thing both the local authority and the individual can do is be clear in their reasoning by acknowledging the evidence in front of them and explaining why that should not be given as much weight.
An approach of ‘well that person is wrong and I am right’ leads to further conflict. When the local authority takes this approach, then they are going to find it very difficult to defend their position. When the individual takes this approach, it strengthens the local authority’s position that the individual is ‘unco-operative’ and ‘demanding’. The local authority is expected to be reasonable, and that means that they have to take into account all of the relevant information. But information that isn’t clearly explained is much easier to disregard or give less weight to. So explaining the situation clearly is more likely to reach a resolution than any entrenchment.
And my number 1 top tip to any professional or individual having difficulty with an assessment is to make sure you put your reasoning in writing at the time the issue is being explored.
In case it isn’t obvious from the fact I still haven’t identified the local authority I used to work for, or the organisation I currently work for, the views expressed in this blog are my own opinion and not the views of those organisations.