Challenging Community Care assessments: Legal remedies

Abstract

Local authority decision-making is increasingly constrained by resource limitations and policies which seek to target or ration services. At the same time, more opportunities are being created for potential users of such services to challenge decisions which they see as contrary to their interests or based upon inadequate information and assessment. Professionals working within the system may also query whether the guidance that they are given by management properly reflects their legal obligations.

This article looks at ways to challenge local authority decision-making in community care. It analyses the legal nature of assessments under the National Health Service and Community Care Act 1990, and describes the available remedies both in public and in private law. Local authority complaints procedures, default powers, the Commissioner for Legal Administration and Judicial Review are considered, as are private law actions for breach of statutory duty. The legal system described is that of England and Wales. The relative merits of the different remedies are explored, in terms of accessibility and efficacy of approach. The importance of a legal framework for decision-making is taken for granted in child care, but is much less well developed in community care; this article seeks to redress that balance.