A judge has warned a cost-cutting local authority that it will not be allowed to force disabled people into residential care against their wishes.
Disabled campaigners were appalled when Worcestershire County Council approved its new “maximum expenditure policy” last November.
Under the policy, new service-users – or those whose needs change – with a support package where the costs exceed a certain limit will usually be told to meet the shortfall themselves, find a cheaper means of support, or “receive their care in a residential or nursing home”.
In response to the new policy, a disabled 17-year-old, known only as D, took the council to judicial review.
D will soon be accessing adult social care services for the first time, and wants to live independently, but his mother fears this will cost more than a residential home placement.
D’s mother warned that the new policy would see D – and other disabled people – forced to choose between an inadequate home care package or residential care.
His lawyers claimed the council failed to pay due regard to its duties under the Equality Act when deciding on the policy, and failed to make the true consequences of the policy clear during a public consultation.
But the high court has now decided that both the council’s decision-making process and its consultation were lawful.
Although the judge dismissed the judicial review, he said the council – when making decisions on funding – would have to consider its own policy objectives of giving disabled people choice and control, encouraging them to live independently in the community, and having fewer people in residential care.
He added: “It will also be required to take into account its assurances… that no individual will be forced into living in residential care, as a result of this policy alone.”
Dr Sarah Campbell, co-author last year of a report for the We Are Spartacus campaign on the council’s proposals, said: “We are disappointed the consultation process was found to be legal.
“However, we are pleased that the legal case has forced the council to make concrete assurances to a higher authority.”
She said the judge’s warning that nobody could be forced into residential care was “highly positive”, and she welcomed the guidance requiring the council to take into account objectives such as disabled people’s independence and choice of support.
Campbell added: “We still have strong reservations about the policy itself and will reserve judgment until we see the effects of its implementation with the above guidelines strictly adhered to.”
And she warned: “Further court action cannot be ruled out if these are breached or if the effects on disabled people’s quality of life and independence are disproportionate.”
Polly Sweeney, a public law solicitor at Irwin Mitchell, who represented D, warned that the policy itself had not yet been tested in the courts, and also warned that it could be subject to further legal challenges if the council did not implement it carefully.
She said: “We remain significantly concerned that the policy breaches disabled people’s fundamental rights to independent living, and the judgment today recognises that the policy will ‘sacrifice choice and control’ in favour of reducing public expenditure.”
Sweeney welcomed the court’s guidance that the council must balance its other policy objectives when deciding how to implement the policy.
But she said: “It is now over to the council to prove that this policy will not in practice have the impact that we fear it will have.”
Anne Clarke, the council’s interim head of adult social care, said: “We are pleased that the judgement has come down in our favour and we will now be working to implement the policy.
“We are always aware of our duties to fully consult on any major changes to policy and ensure we have due regard to our equalities duties, and the judge has agreed that we have done both regarding the maximum expenditure policy.”
15 August 2013
