AA, R (On the Application Of) v London Borough of Hackney

A care and support needs assessment is a multi-factorial expert judgment. The assessor must consider the principal issues, ask the correct statutory questions and reach a conclusion within the broad margin of discretion afforded by the legislation. The assessment need not address every piece of evidence and should not be read as though it were a legal judgment.

Whether a person is unable to achieve an outcome under the Care Act 2014 and the Care and Support (Eligibility Criteria) Regulations 2015 is generally a matter for the assessor’s judgment. The same applies to deciding whether an interpreter or independent advocate is required. A later expert opinion may establish a procedural defect only in exceptional circumstances, such as where the person could not meaningfully participate without an advocate.

The claimant, a failed asylum seeker with physical and mental health conditions, challenged Hackney’s decision that he had no eligible care and support needs under the Care Act 2014. He also challenged the failure to provide accommodation and other decisions, but permission was refused for the additional grounds.

The claim concerning the needs assessment alleged that the assessment failed properly to evaluate the claimant’s functional difficulties and medical evidence, proceeded without an interpreter, and breached the duty to provide an independent advocate under section 67. The central issues were whether the assessment was legally defective and whether the claimant had shown any justiciable error.

1. The claim was dismissed. The claimant had not demonstrated that Hackney’s needs assessment was vitiated by a justiciable error.

2. A needs assessment under the Care Act 2014 involves a multi-factorial expert judgment. The assessor must evaluate evidence from different sources, apply the statutory questions and reach a conclusion within the broad margin of discretion afforded to the assessor. As explained by Hallett LJ in Lambeth London Borough Council v Ireneschild [2007] EWCA Civ 234, social-work assessments should not be subjected to over-zealous textual analysis. The assessment must consider the principal issues and apply the correct legal questions, but it need not refer to every item of evidence.

3. The functional assessment had to be read as a whole. Although it recorded unsafe toilet-transfer technique, chronic pain, continence difficulties and problems with stairs, its overall conclusion was that the claimant was independent in daily living and that the identified equipment was of minimal assistance. It was therefore open to the assessor to conclude that the claimant could use toilet facilities and achieve the relevant outcomes independently.

4. The assessor was entitled to conclude that the claimant’s continence problems, standing tolerance and difficulty with stairs did not make him unable to achieve the outcomes in regulation 2 of the Care and Support (Eligibility Criteria) Regulations 2015. Those conclusions involved evaluative judgment and were supported by the evidence.

5. The assessor was entitled to give greater weight to the current functional assessment and occupational-therapy evidence than to the claimant’s earlier psychiatric report and the referral organisation’s account. The assessment showed that she had considered the relevant material and formed an independent view.

6. The decision to proceed without an interpreter was also a matter of judgment. Both the social worker and occupational therapist considered the claimant’s ability to communicate in English and concluded that he could understand and answer the questions, particularly where simple language was used. The evidence did not establish that the absence of an interpreter vitiated the assessment.

7. Section 67(4) of the Care Act 2014 requires an independent advocate where the individual would otherwise experience substantial difficulty understanding, retaining, using or weighing relevant information, or communicating views, wishes or feelings. Whether that threshold is met is a matter of judgment for the assessor. Ex post facto expert evidence might establish a procedural defect if it showed that meaningful participation was impossible without an advocate, but the evidence here did not do so.