FACS and fiction

Why is Germany’s military expenditure considerably less than the UKs’, despite Germany being significantly wealthier, more populous and closer to Russia?[1]  Why does Essex spend 40% more (per person) on social care services than Leicestershire? Although he does not make this particular analogy, Colin Slasberg, in a sparkling paper The failure of the National Eligibility Criteria – what next?,[2] demonstrates that the reasons are the same.  What they spend is what they spend: expenditure is not determined by objective criteria – but by what is in the budget.  What is in the budget is determined by what has historically been in the budget.  You can change the eligibility criteria as much as you like and yet the council’s expenditure will still be determined by what is in the budget: Lancashire will continue to spend 35% more (per person) than Oldham.

Slasberg[3] cites extensive evidence to support his analysis, for example:

  • a 2015 study that found that, despite the replacement of FACS[4] by statutory eligibility criteria, ‘councils were assessing for eligibility in much the same way they always had, merely changing the terminology’;[5] and
  • a 2016 report that found ‘a six-fold variation between councils in the rates of people they supported in care homes and an eight‑fold variation in their provision of home care’.[6]

Slasberg’s critique is compelling: eligibility is determined not by eligibility criteria but by the amount a council allocates to its budget: that a ‘need that requires public resources can only be acknowledged if there is resource to meet it.’ In his view this is possible, in part, because the ‘Eligibility Criteria are constructed in a way that makes them capable of an almost limitless range of interpretations’.

Almost every analysis of such criteria brings us back to the Gloucestershire[7] judgment and to Lord Lloyd’s seminal rejection of the idea that public bodies and families managed their budgets in the same way.  Lord Clyde (who gave the ‘majority’ judgment) had advanced the folksy image that eligibility criteria were concrete and rational:

it seems to me that the severity of a condition may have to be to be matched against the availability of resources. Such an exercise indeed accords with everyday domestic experience in relation to things which we do not have. If my resources are limited I have to need the thing very much before I am satisfied that it is necessary to purchase it.


The fact that there was absolutely no evidence that authorities did their housekeeping this way, did not seem to trouble the noble Lord.  The fact that Gloucestershire had simply withdrawn services from a whole range of people ‘in need’ because its budget had been cut – did not seem to provoke in the noble Lord the idea that it was ‘budgets’ not ‘criteria’ that were decisive.

Lord Lloyd rejected this functionally illiterate analysis and its uncritical devotion to the idea of eligibility criteria as a ‘science’.  For Lord Lloyd, the public provision of social care had to be based on the ‘standards of a civilised society’ – an imprecise concept but (in his view) a concept of ‘practical value’: as he observed ‘every child needs a new pair of shoes from time to time. The need is not the less because his parents cannot afford them’.

Lord Lloyd’s judgment is worth re-reading: a cri de couer for social justice – a dissenting voice in a time of rampant commodification, privatization and responsibilisation: a time when we were being lectured by a millionaire Prime Minister about how poor families should manage their budgets: a time when John Maynard Keynes was turning in his grave.

Many thanks to Colin Slasberg for his analysis: his paper The failure of the National Eligibility Criteria – what next? appears in the most recent edition of Research, Policy and Planning (volume 33(1)) and can be accessed by clicking here.

[1] $41.1billion compared to $46.1billion (1.2% of GDP compared to 1.9% of GDP) – see Stockholm International Peace Research Institute Trends in World Military Expenditure (SIPRI 2016).
[2] Colin Slasberg The failure of the National Eligibility Criteria – _what next? Research, Policy and Planning (2017/18) 33(1), 15-25.
[3] Colin Slasberg The failure of the National Eligibility Criteria – _what next? Research, Policy and Planning (2017/18) 33(1), 15-25.
[4] Department of Health Fair Access to Care Services: Guidance on Eligibility Criteria for Adult Social Care (DH 2003).
[5] Personal Social Services Research Unit An Assessment of the Impact of the Care Act 2014 Eligibility Regulations (PSSRU 2015).
[6] King’s Fund Social Care for Older People – Home Truths, (King’s Fund  2006).
[7] R v. Gloucestershire C.C. and the Secretary of State for Health ex parte Barry [1997] AC 484.

Posted 16 February 2018