Two decisions concerning local authority attempts to reduce the costs of community care services


Sefton Care Association & Ors, R (on the application of) v Sefton Council [2011] EWHC 2676 (Admin) (9 November 2011)

JM & NT, R (on the application of) v Isle of Wight Council [2011] EWHC 2911 (Admin) (11 November 2011)

These two High Court decisions look at some of the issues that local authorities face when they are considering trying to reduce the costs of community care services. In both cases the Court emphasised the importance of following statutory Guidance, and carrying out adequate consultation.

In Sefton, the Council had decided to freeze the fees it paid for people placed in residential care.  For several years the fees increased in line with inflation, but the Council decided that it would not increase the fees for 2010/11 or 2011/12. The decision for 2011/12 was challenged by a group of local care providers.

The Court quashed the decision to freeze the fees because the Council had not considered the actual cost of providing care as required by the statutory Guidance. The Court also held that there was no meaningful consultation about the proposal to freeze the fees, and when the care providers did express concerns about the proposal, their views were not taken into account.

In JM & NT the Council proposed to make savings by changing the eligibility criteria for adult social care services. Historically the Council had provided services to those assessed as being at Critical or Substantial risk. The new criteria were that for people at Substantial risks only those needs that placed them “at the greatest risk of not being able to remain at home and safe” would be met.

The case was brought on behalf of two young men with autism. The Court held that the Council had unlawfully breached statutory Guidance by prioritising the risks of not being able to remain at home and to be safe over other risks. The Guidance makes it clear that there is no hierarchy of needs, and all areas of life must be considered, including the right to dignity and respect, quality of life and freedom from discrimination. The Council had also used criteria relating to the frequency, likelihood and immediacy of risk, instead of focusing on the severity of risk as required by the Guidance.

The Council had carried out a consultation exercise, but those consulted were not given details of the number of people who might be affected, the costs and potential savings, or the types of services included and as a result the responses to the consultation could not fully reflect the experiences and views of users and their carers.

In both cases issues were also raised as to whether the Councils had complied with the general duty under S49A of the Disability Discrimination Act 1995 to have due regard to the needs of disabled people.

In Sefton the Court declined to hold that there had been any failure in relation to the 1995 Act, because there would have been no further need for the Council to consider its equality duties had it properly assessed the level of fees it would pay.

In JM & NT, the Court held that the Council had failed to comply with the equality duty in S49A. The inadequate consultation, and a similarly flawed Equality Impact Assessment, meant that Councillors considering whether to adopt the new policy did not have sufficient information to enable them to discharge their duty to have “due regard” to the needs of disabled people.

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