Judge Rules Care Cost Cut Policy To Be Unlawful And Consultation Provided ‘Insufficient Information’ For ‘Intelligent Consideration’

11/11/2011

Lawyers representing two severely disabled residents from the Isle of Wight who today won a legal challenge against the local Council have said the judgment sends a ‘very clear message’ to all councils in England and Wales considering cutting social care services.

Speaking after the judgment was handed down, legal experts confirmed that the High Court ruling deemed the local authority’s plans to cut its adult social care budget were unlawful after Judge Mrs Justice Lang said that it failed even to comply with its own internal guidance on how to assess the impact of its new policy.

She went onto say that the consultation document ‘provided insufficient information to enable those consulted to give intelligent consideration and an intelligent response’. 

Brought by public law experts at Irwin Mitchell on behalf of the families of disabled residents JM and NT, who rely heavily on the services available to them to help provide the 24-hour-care they desperately need, the battle for justice followed news earlier this year that the council was cutting social care support.

Now, lawyer Alex Rook from the firm said the landmark judgment delivered at the High Court this morning would provide clarity for the thousands of disabled people on the Island who stood to lose all or part of their social care packages under the proposed changes.

Rook said the ruling will prevent the council from cutting services available to some of the most vulnerable disabled people on the Isle of Wight and would provide ‘comfort and peace of mind’ to thousands of residents. He said: “This landmark victory sends out a very clear message to all councils in England and Wales.

“If a Council seeks to make cuts to its budget for adult social care, it cannot do so by only meeting certain needs designed to keep someone safe, but neglecting their overall quality of life.  The Judgment also makes it very clear that if a thorough and full consultation process is not carried out when considering proposed cuts to services to disabled adults, the courts will quash the policy.”
 
Suffering from severe autism and brain damage, JM*, as he has been known throughout this case, struggles to communicate with anyone but his parents. He needs support with all areas of his daily life and lives with his parents who are reported by the court to ‘devote their lives to his care’.

The second claimant, NT, has a-typical autism and a learning disability. He is described as 'highly vulnerable and anxious and he has communication difficulties, and so needs to be supported by people who understand his way of communicating'.  NT’s mother, with whom he lives at the weekend, brought this case out of concern that the Council’s policy would have a potentially ‘devastating’ effect on NT’s quality of life.

Both men, and their families, rely heavily on the council to provide the 24-hour care they need.

Handing down her full judgement today at the Royal Courts of Justice, Mrs Justice Lang declared that the Isle of Wight’s adult social care policy would have to be quashed for two reasons;

• That the policy designed to meet the needs of disabled adults was itself unlawful
• That the Council failed to have regard to the need to promote disability equality under Section 49A of the Disability Discrimination Act 1995 when it set the policy.

Alex Rook explained: “Naturally our clients’ families are delighted that the High Court has quashed the council’s policy.

“The Judge has ruled that the consultation the Council undertook did not involve proper consideration of the practical detail of what the move to this new policy would entail even were it lawful, and the Council had very little information about the impact that this would have on people’s lives before it when it took this decision. 

“The reality is that the Council simply did not know what the effects would be - other than how much money would be saved – and so the Court has declared the Council also to be in breach of its obligations under the Disability Discrimination Act.”

In relation to the flawed new policy, Mrs Justice Lang today said that it was contrary to the guidance set by Government ‘to ensure consistency and transparency between different authorities’. 

She added: “I consider that the consultation document provided insufficient information to enable those consulted to give intelligent consideration and an intelligent response”, and that “Consultees, including the parents of the Claimants, were left uncertain as to what impact the revised criteria would have on the assistance they received from the Council”.

Mrs Justice Lang also formed the view that the Council did not even comply with its own internal guidance on how to assess the impact of its new policy - which required an evidence-based assessment – describing the reports that were before the Council when it took its decision to adopt this policy as being ‘in very general terms, focussing mainly on the funding aspects.’

Mr Rook added:  “This is a hugely important victory not just for the two individuals involved in this case, but also for the thousands of other people who may have been affected on the Isle of Wight and for families across the country wondering if their council was also going to cut services in the same way.

“Our clients and their families rely heavily on this care and it would have represented a huge backward step if the care support was removed.  It will also clarify the law for every authority through England and Wales if they consider taking similar steps as it is now clear that, with the exception of life-saving treatment, all needs that come within a Council’s eligibility are of equal importance.  This could be the prevention of abuse or neglect, support with personal care, access to education or work or support to maintain family and other relationships.

“Ultimately, authorities considering making further cuts can’t just do so by withdrawing support in areas it considers to be less significant. The Courts have upheld the position that they are obliged to go beyond just keeping people safe.”

The Isle of Wight Council launched the consultation exercise into its eligibility policy as part of plans aimed at reducing the amount of money it spends on adult social care of approximately £1.6m. The consultation ended on 14 January 2011 and the plans were approved by the Council at two separate meetings on 8 and 23 February 2011.

It was thought that up to 2,000 disabled people on the Isle of Wight could lose all or parts of their social care packages currently provided by the Council as a result of the proposed changes. 

The successful application for a judicial review means the Isle of Wight Council will be forced to put back in place the services that were cut under the new policy and to continue providing services for those with ‘critical’ and ‘substantial’ needs until such time as it decides to retake its decision.

Mark Milton, Chief Operating Officer of the NAS, said: “The High Court’s decision will help safeguard much needed social care services on the Isle of Wight for adults with autism and other disabilities.

“The High Court ruling has prevented potentially devastating cuts from going ahead, which could have severely impaired the quality of life for many of the island’s most vulnerable people who desperately need support.

“The NAS now calls on other local authorities to recognise the national implications of the ruling and ensure they are fulfilling their statutory obligations for adult social care.

Cutting vital services to satisfy budgetary targets is not a viable solution and can actually create greater financial pressures in the long run. Research by the National Audit Office in 2009 found that failing to invest in support for adults with autism is a false economy. Millions could be saved every year if adults with the condition are properly identified and supported.

“With the right support at the right time, people with autism can live fulfilling and rewarding lives.”

*Please note that the claimants in this case are anonymised by order of the court and will not be available to comment on the judgment.