The assessment process in Glasgow.
The backbone of the personalisation process in Glasgow is a short form of assessment that was originally issued as a “Self Assessment Questionnaire” but in its latest version has been issued as a “Self Evaluation Questionnaire”, (SEQ).
This is designed as a simple assessment that can outline the needs of service users relatively quickly by looking at where people need help to achieve a range of social care “outcomes”. This SEQ is then used to allocate a number of points depending on particular answers to each question. The total number of points allocated is then used to establish an Indicative Budget which should form the basis for meeting a person’s needs.
A number of concerns have arisen over the assessment.
•It has not involved the service user themselves in most cases
•It was originally intended for use by trained social work staff but was in practice, carried out be staff employed by providers.
•Training given to providers was limited and there was no guarantee that staff completing had been trained
•Some staff did not have a full understanding of the needs of the service user being assessed.
•Many of the questions were vague or ambiguous.
•Some staff completing assessments ignored the views or interests of welfare guardians
•The SEQ was inadequate as an assessment of need and should have been used as a supplementary assessment.
•There was an abrogation of responsibility by the local authority in its duty to carry out an assessment of people in need of community care services.
Two other points worth noting indicate that a number of the weaknesses of the form and method of the SEQ used for the 1,200 service users of provider organisations in Glasgow are already recognised by the local authority.
1) While the SEQ is being treated as sufficient when Indicative Budgets based on the SEQ are lower than current service cost, when the Indicative Budgets are higher than current costs then the local authority is requiring a full Single Shared Assessment to be carried out.
2) A draft SEQ version 10 is being produced which has been significantly amended to include aspects of the Single Shared Assessment. This has been done following complaints and comments from carers. However when it is eventually produced it will only be used for new Personalisation assessments – it will not be applied retrospectively.
There can be debate over whether this is good practice or a legitimate response to extraordinary financial challenges but there is a serious challenge possible on the legality of these actions.
The Legal Situation
Community Care assessments in Scotland made under sections 12A and 12AA of the Social Work (Scotland) Act 1968.
•Section 12A(1)(a) requires that the Respondents “shall make an assessment of the needs of that person for those services.” And
•Section 12AA(1) & (2) requires the authority to comply with a request “to make an assessment (“the carer’s assessment”) of the carer’s ability to provide or continue to provide such cares for that person”.
•Reference to making an assessment means making a proper and adequate assessment.
Assessments must be more than a narration of some of the facts; there should be a proper “assessment” of needs; with appropriate input from health professionals to assess psychological and other mental health needs. R v North and East Devon Health Authority ex p Coughlan  makes clear that even where only simple nursing services may be required then appropriate health professionals should be involved in a multidisciplinary assessment.
An assessment should also look at needs in the short term and in the longer term. The assessment should include an assessment of the priority for a placement, why a particular placement or support package might be necessary and in what time frame.
Local Authority practice on assessment is covered by guidance that it is issued under s.5 of the Social Work [Scotland] Act 1968. This section of the 1968 Act stipulates that local authorities must perform their functions under the general guidance of the Secretary of State [eg Circular CCD 8/2001: Single shared assessment of community care needs]. Such guidance is enforceable by the courts.
R v North and East Devon Health Authority ex p Coughlan 
Robertson v Fife Council 
R (Savva) v Kensington & Chelsea Royal London Borough Council  , the House of Lords [Lord Hope] expressed his agreement with the view expressed by the English High Court [ R v Islington London Borough Council, ex p Rixon], that this meant that "local authorities are required to follow the path charted … by the guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course".
Further in R (Savva) v Kensington & Chelsea Royal London Borough Council  it was made clear that even where the local authority was to carry out “a consideration of the relationship between the assessed eligible needs of a particular applicant and the assessed eligible needs of others in the same local authority area”, this could not be done simply on a points system but had to include a identification of people’s needs.
The Guidance on Assessment
The key principles in the Guidance that influence how a local authority must carry out this assessment are
•People who use services and their carers should be actively involved and enabled to participate.
•The type(s) of assessment should be appropriate to the person’s indicated needs:
• Simple assessment
• Comprehensive assessment
• Specialist assessment
•Assessment should be undertaken by the most appropriate lead professional.
•The assessor should be appropriately skilled and qualified to deal with the type and level of assessment.
•Appropriate information should be shared by informed consent of the person or the person’s representative.
•Single, Shared Assessment must facilitate access to all community care services.
•Other professionals and agencies must accept the results.
Assessment is a Local Authority Responsibility
Legal advice received by the ADASS in England and Wales and accepted by the Scottish Government is that self assessment is not lawful. A local authority cannot surrender its duty to carry out an assessment. In a recent charging case, R (B) v Cornwall County Council (2009) 12 CCLR 381, the judge ruled as unlawful the practice of self-assessment standing alone as the only assessment. Here it was stated that:
Furthermore, it is right that the views of the service user and family carers are sought as to his needs and the steps the authority propose to take in respect of those needs. The relevant guidance requires that. The user may of course also be able to produce evidence of a particular need. But the [local] authority cannot avoid its obligation to assess needs etc by failing to make an appropriate assessment themselves, in favour of simply requiring the service user himself to provide evidence of his needs.
Assessing the scale of deviation
Only legal action is the courts can determine in any single case if there has been a breach of these conditions. Courts would use the remainder of the list to consider whether the form of assessment used in Glasgow deviated substantially from the course laid down in the guidance.
An assessment could be seen to be flawed and open to challenge if
•users and carers have not been involved in the process,
•their preferences not ascertained
•those with communication or mental capacity difficulties have not been given help with representation to express their views
•It was not led by an appropriate lead professional
• the person carrying out the assessment was not suitably skilled and qualified for this particular form of assessment .
As a result there is a strong case to be made over that legal challenge by many of the individuals subject to at least the early forms of SEQ assessment would be successful.
Thursday 24th March 2011
DISCLAIMER: Nothing in this document should be taken as legal statement of fact. Opinions may vary and new court finding regularly arise. Full legal advice should be sought from an independent legal adviser before action is taken. This document may be freely used to start some of the thinking over what legal action might involve.
The Learning Disability Alliance Scotland, Unit 12, Hardengreen Business Centre, Eskbank, Dalkeith, EH22 3NX, Tel 079 201 418 23, website www.ldascotland.org
Note: English and Scottish case law. We have quoted two examples English case law in this document. The legal position is that where the legislation is identical or very similar in England and Scotland, English High Court and Court of Appeal cases will be persuasive in a Scottish court; whereas a House of Lords decision will be binding. Conversely, Scottish Court of Session cases [Outer House or Inner House], are persuasive in England, and a Scottish case reaching the House of Lords is binding in England. Both cases quoted here are likely to be at least “persuasive” and probably “binding”