Lawyers Warn That The Council May Face Further Legal Action Over Implementation of the Policy In The Future

By Dave Grimshaw

A High Court Judge has ruled today that Worcestershire County Council’s consultation and decision making procedure, which led to it approving a maximum expenditure cap on care packages for those living in the community, was lawful. However, lawyers warned that the policy itself has not been tested legally and could lead to further legal challenges in the future if not implemented carefully.

The case was brought by D, a disabled teenager, following concerns that the Council had not made the true consequences of the policy clear during its public consultation and that the real impact would be that D, and other disabled people in Worcestershire, may be forced to make a choice: either accept a care package at home, which is less than what is needed, or be forced into residential care. However, the Judge did not accept the Claimant’s case on the consequences of the policy.

Law firm Irwin Mitchell, which has already successfully challenged public cuts to care in other regions, took the matter to Judicial Review on D’s behalf after the council refused to consult again or review their decision on the policy.

The mother of the teenager at the heart of the court battle, known only as D for legal reasons, said that although she was disappointed at the decision, it was worth some comfort that the council had given assurances during the Judicial Review process that the policy will not force any individuals into residential care.

D’s mother said: “We brought this case because we wanted to ensure that not only will my son be protected from going into residential care, but also to help others who may be forced into a similar situation in future. The Judge has accepted the Council’s assurances that our concerns are not valid and I can only hope that over the coming months and years, the Council will show us that the Judge was right in reaching this view.”

Polly Sweeney, a specialist public law solicitor at Irwin Mitchell who brought the legal challenge on D’s behalf, said: “We are obviously disappointed that the Court has found that the process by which the Council has adopted this Policy is lawful. However, this challenge was not against the lawfulness of the policy itself as the policy has not yet been applied to anyone.

“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”.

Although the Judge dismissed the claim, he gave clear guidance to the Council on how they should implement the policy in future, warning:

“...in exercising its discretion as to whether to allow greater costs than the residential equivalent, the Council will be required to take into account its own policy objectives of giving disabled individuals control and choice over their care support, encouraging disabled individuals to live independently in the community, and having less not more individuals in residential care. 

“It will also be required to take into account its assurances during the consultation period – and in the course of this claim – that no individual will be forced into living in residential care, as a result of this policy alone.”

Polly added: “We welcome the guidance given by the Court that the Council must balance its other policy objectives when deciding how to implement their maximum expenditure policy. 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.

“We will be watching carefully over the coming months as to how the Council is implementing this policy to ensure that their assurances given during the course of this case are adhered to. We would urge any individuals who do find themselves affected by this policy to come forward and take legal advice as soon as possible.”

Background

The ‘Maximum Expenditure’ policy imposes a cap on the amount the Council will typically pay towards the costs of care at home, other than in exceptional circumstances. This is based on the cost of a residential care placement for that person. The policy was approved by the Worcestershire County Council Cabinet on 8 November 2012.

The Claimant was a 17-year-old, known only as D to protect his identity, who currently lives at home with his mother in Worcestershire and has been diagnosed with moderate learning disability, epilepsy and ADHD and has traits of autism. He will soon be accessing adult social care services for the first time.

He would like to live independently in the future. D’s mother has recently completed 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.

D’s mother believes that the costs of such a care package in the community may well be more than the costs of residential care. D’s mother is therefore very concerned about the impact of this policy on his future.

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