Teenager Who May Be Forced Into Residential Home To Seek Judicial Review Over Policy to Cap Care Costs

A teenager and his family are launching a legal action in the High Court against Worcestershire County Council to challenge a policy which they say may force many people into residential care as the Council will place a cap on funding for care packages if people choose to live in the community.

Law firm Irwin Mitchell, which has already successfully challenged Council cuts to care for the vulnerable in other regions, said the council had failed to undertake a lawful consultation when deciding on its Maximum Expenditure Policy and that in the process of approving this Policy, the council have failed to have due regard to its duties under the Equality Act.  They are now applying to take the matter to a Judicial Review after the council refused to consult again or review their decision on the policy.

It is thought to be the first time such a draconian measure has been employed by a Council in England and Wales, when cutting social care budgets for vulnerable and disabled people. There has already been widespread concern regarding the Council’s policy - which imposes a so called “Maximum Expenditure” cap on adult care budgets so that if the cost of living in the community is more expensive than living in residential care, the individual will either have to make up the difference themselves, or be left with no choice but to go into residential care. 

The policy was approved by the Council Cabinet on 8 November 2012 following a period of consultation which was widely criticised for being unclear and not providing sufficient information about the proposals. The policy affects all adults in the region with disabilities.

The Claimant, who is known as D in order to protect his identity, is 16 years old and currently lives at the family home in Worcestershire, with his parents. He has been diagnosed with moderate learning disability, epilepsy and ADHD, and has autistic traits and challenging behaviour.

He will soon be accessing adult social care services for the first time and will be directly affected by these proposals. His family’s wish is that he will be able to live independently in future like other young people his age, but do to this, he will need social care support from the local authority due to his complex needs, and if the costs of a care package are higher than the new ‘Maximum Cap’ then he may be forced into residential care as he will not be able to cover the extra cost himself.

Irwin Mitchell has written to Worcestershire County Council to ask that they undertake a new consultation and equality impact assessment in relation to the options in order to ensure that they have properly considered the significant impact of its decision on the lives of disabled people in the County and their ability to live independently in the future. However the Council says they will not do this, so D and his family are left with no choice but to apply to take the case to a Judicial Review.

Polly Sweeney, a public law specialist at Irwin Mitchell represents the family, she said: “The Policy which the Council has introduced is likely to have a significant impact on the ability of many disabled people within the region to live an independent life in the community.

“We have real concerns that the process by which the Council took this decision is seriously flawed and as a result, the needs of disabled people have not been properly considered. We are particularly worried about how young people going through transition will be affected by the Policy, or individuals who may have suffered a significant change in their circumstances, such as those who may have suffered a brain injury and so will need to access support from the Council for the first time.

“D’s family are determined to take action, not just for themselves but to help others who may also be affected.”

D’s mother, has recently undergone treatment for cancer and wishes to ensure that appropriate arrangements are made for her son’s future and transition to adulthood now, in the event that anything were to happen to her.

Polly Sweeney of Irwin Mitchell added: “The family hope that in the near future, D will be able to move out of the family home into a supported living tenancy in the community but due to his care and medical needs, in particular his epilepsy and need for constant supervision, he will require 24 hour support.

“If the Council’s policy remains unchallenged, the costs of such a care package in the community may well be more than the costs of residential care. This would mean that D would be forced into institutional care whilst his non-disabled peers are able to continue living in the community. It is cases such as this which we are concerned that the Council has not properly considered through his consultation and decision making process. Whilst the Council have said that they will consider exceptions to their policy, none of the examples they have given would apply to D or others in his situation.”

D’s mother, said: “Restricting the funding available to meet D’s care needs like this may leave him with no choice but be forced into residential care. I’m worried for what will happen to him in a few years as we would not be able to afford to support a suitable care package if the Council imposes their Cap. I am getting older and have my own health difficulties and I need to ensure that D is properly set up on his own in the community so that I know if he is properly cared for should something happen to me.

“It is a huge concern that this policy seems to have been decided without a proper consultation and I worry about how many other disabled people might be affected too. Not everyone wants, or needs, to live in full time residential care but many will be left with no choice due under the current policy due to having to meet some of the costs themselves. If people are concerned about the way this policy was brought in should come forward and raise their concerns now – before it is too late.”