Isle Of Wight Council Chiefs Face Legal Challenge On Adult Social Care Policy

Case Follows Success In Court For Disabled Victims Of Birmingham Council Cuts

09.09.2011

09/09/2011

The Isle of Wight Council has become the latest to face a legal challenge after it announced plans to make changes to its adult social care services, a move public law expert’s say will leave the most vulnerable members of society at risk.

Now the team at Irwin Mitchell, who are acting on behalf of a number of disabled service users, were granted permission on Thursday to proceed with a judicial review of the Council’s decision after Deputy High Court Judge Ian Dove QC decided that the Claimants have an arguable case.

Because of the merits of the case and potential impact on many people on the Isle of Wight the case was granted permission to proceed even though the claim was lodged later than expected. It will now be listed for a full judicial review hearing before the end of October.

Concerns have been raised after the council introduced a controversial new eligibility system for access to social care which has seen the adoption of a threshold that means only those with ‘critical’ needs and those with ‘substantial’ needs who are deemed to be ‘at greatest risk of being unable to remain at home safely’ can access support.

Irwin Mitchell’s public law team, who have already been contacted by victims of the changes to social care services across the UK, are arguing that the Isle of Wight Council’s policy has left many people confused and worried over whether they will be eligible for care. They also have concerns that the move fails to follow government guidance in which it is required to set its eligibility criteria, following lawful consultation, according to four bands: critical; substantial; moderate and low.

The “Fair Access to Care Services” and “Prioritising Need” government guidance provide guidelines for Councils in setting their eligibility criteria for social care. The Isle Of Wight Council, which previously provided care for both substantial and critical needs, now proposes to ‘split’ these bands. Irwin Mitchell knows of no other Council which has such a policy.
 
The case is just the latest in a series of social-care related legal challenges brought by Irwin Mitchell which are already having an effect on thousands of vulnerable and disabled people and could have huge ramifications for local authorities across the UK.

This latest challenge was launched on behalf of two men who are both aged 32, known as JM and NT in order to protect their identity. JM has severe autism and brain damage and is non-verbal to anyone other than his parents. NT has a-typical autism and a leaning disability.  They both rely on their families and the authorities to provide the 24-hour care they need.

However, they are among potentially thousands of people whose needs will be reassessed after it was announced that, as from 1 April 2011, the needs of individuals not considered to be ‘critical’ would no longer be the responsibility of Isle of Wight Council.

JM, who received a letter in March this year from his local Council notifying him of the proposals, is almost completely unable to express himself verbally, read or write. He needs support with all areas of his daily life and his personal care in order to engage in activities and access the community. He is extremely vulnerable to exploitation, abuse and harm if left alone.

NT needs support to engage in activities and access the community. NT can neither read nor write and also has great difficulty expressing himself verbally. He is unable to cook for himself, go shopping or undertake any domestic tasks without support. He has little or no road safety awareness. He is extremely vulnerable to exploitation and abuse by others.

If the Council’s proposals are implemented, it would mean that needs which do not fall into the ‘critical’ and part of the substantial band would not be met. For NT, this may mean that various areas of support, including support assisting him.
 to remain safe when he is in the community, may be withdrawn.

The plans outlined by the Council, which aims to reduce the amount of money it spends on adult social care, are thought to affect up to 2,000 disabled people on the Isle of Wight who will lose all or parts of their social care packages currently provided by the Council as a result of these changes.

Irwin Mitchell is seeking an urgent judicial review on the lawfulness of the Council’s decision and believes the case is one of many where Councils are making decisions to cut public services whilst ignoring residents’ legal rights.

“This is sadly just one of a number of examples we are seeing at the moment where local Councils under pressure to cut costs are looking to remove their own responsibility to meet the needs of many disabled people and riding roughshod over the needs and legal rights of some of society’s most vulnerable individuals,” said Anne-Marie Irwin, solicitor within the Public Law team at Irwin Mitchell’s London office.

“We have already successfully fought for justice on behalf of clients who faced similar social care cuts in Birmingham and other parts of the country, and it is essential that authorities learn as a result of the court’s judgment to ensure that any action taken is entirely lawful and in the best interests of those we represent.”

The judicial review is being sought on the grounds that the Council has failed to have due regard to the need to promote equality under the Disability Discrimination Act 1995 and that the decision is against government guidance on adult social care. The decision of the council will affect older clients who need care assistance, people on the autistic spectrum, and those with brain injuries, mental health problems and learning disabilities. 

Irwin Mitchell also considers that the claimant’s human rights under the European Convention on Human Rights (ECHR) could be severely compromised as the proposals threaten their right to a private life and their ability to access essential support and care to enable them to live safely and maintain a level of independence.

According to Irwin Mitchell, the policy, which will restrict eligibility for some of those individuals with ‘substantial’ care needs, fails to meet legal requirements in a number of areas – particularly its lack of clarity in relation to which groups will be affected, and what the options for those people who will have their care package removed are.

Ms Irwin added: “The Isle of Wight Council’s decision making process appears to be completely unfair on those people and families that are affected.

“The legal arguments also outline the argument that decision makers failed to consider  the full impact of these proposals for disabled people and whether they could be avoided or at least mitigated,.

Discussing the legal aspect to the case, Ms Irwin said: “It is a concern that all the options for the citizens of The Isle of Wight have not been properly presented to them. Cutting vital care provision for the disabled and elderly has not been properly justified and the full impact of the proposals has not been adequately assessed. Significantly, it will be argued that the proposals fail to have due regard to human rights and the need to promote disability equality - a legal requirement under the Disability Discrimination Act 1995.

“We have asked the Council to re-consider their policy having carried out a lawful decision making process which includes the production of a lawful disability equality impact assessment, setting out the impact on disabled people of the proposals and any steps which could be taken to mitigate this impact. Unfortunately, the Council have refused this request and therefore our client had no other option but to launch proceedings.”

In addition to this case in The Isle of Wight, Irwin Mitchell is acting for a number of other vulnerable people in other parts of the UK who have received similar letters from their local councils.

Mark Lever, Chief Executive of the National Autistic Society (NAS), said: “We are concerned about the changes to eligibility for social care on the Isle of Wight, which suggest that the help disabled adults need to access the community could be removed, regardless of the impact on that person's quality of life. 

“Government guidance clearly states that social inclusion and participation in society are as important as personal care. If the Isle of Wight Council decides to only support people’s basic needs, then we are likely to see a significant impact on the ability of adults with autism and other disabilities to live a full and varied life of their choosing.”