West Berkshire Council Challenged In High Court Over ‘Critical-Only’ Policy

A landmark legal battle has been launched to overturn a controversial adult social care policy used by three local councils which means potentially thousands of vulnerable and disabled people cannot access the vital care and support they need.

West Berkshire Council is one of only three councils out of 152 in the whole of England, alongside Wokingham and Northumberland, to currently operate a policy which means that only those with needs classed as ‘critical’ can access care services. This means that potentially thousands of people miss out on necessary care and support, such as those cases where:

• neglect or abuse has occurred
• they are unable to carry out the majority of their personal care
• they cannot sustain the majority of their support network and family and other social roles

A ‘critical-only’ policy means that care to prevent the risks to individuals in many situations would simply not be met by that council.

Now, public law specialists at Irwin Mitchell have issued proceedings against West Berkshire Council at the High Court in London on behalf of five severely disabled young people who currently are not eligible to gain access to the social care services they desperately need.  If successful, the case will prevent any council from adopting such a restrictive policy again under existing laws.

The team of lawyers, who last year successfully won cases on behalf of disabled individuals against Birmingham City Council and Isle of Wight Council over proposed plans to move to the ‘critical-only’ policy which West Berkshire Council has in place, say the consequences of the judgement could be far reaching.

Alex Rook, the lawyer at Irwin Mitchell acting on behalf of the five clients, said: “Many severely disabled people across the country rely heavily on the support that is offered by social care services, but not all of those people fall under the umbrella of what is deemed ‘critical’.

“This policy in West Berkshire leaves our clients and possibly thousands of others both potentially vulnerable to harm and isolated from their local communities.

“It also leads to what is often described as the ‘postcode lottery’ in social care, whereby any of our clients could move to one of the 149 other councils that do not have the same policy and would then be eligible for much needed care.  We are determined to ensure that our clients can get the support they need and are lawfully entitled to.”

The law firm’s five clients, who cannot be named for legal reasons, are all directly affected by the policy.  Siblings Z and F both have a learning disability and autistic-like behaviours.  Z speaks with 1-2 word sentences, needs support to be available 24/7 and needs prompting and supervision in almost all areas and all activities of daily living & domestic tasks.  He is unable to leave his house unaccompanied.  His sister F also needs support to be available 24/7 for all daily activities and domestic tasks and has been assessed by the Council as being vulnerable to all forms of exploitation and abuse.

SW has a diagnosis of severe learning disability and a mental age of around five or six years old. She also has epilepsy, which causes seizures. She is in need of constant supervision and without this is liable to hurt herself, particularly if she has a seizure.

HB has a diagnosis of mild learning disability and has also been assessed by the Council as being vulnerable to abuse and exploitation by her peers, while AT has diagnoses of autism and epilepsy. He has no speech, very limited communication skills and displays challenging behaviour.

While Irwin Mitchell’s previous cases in this area were based on councils failing to consult properly or act in accordance with the Equality Act 2010 when the Council’s sought to introduce this policy, this case is being argued on the basis that a ‘critical-only’ policy is in itself unlawful, being a breach of section 2 of the Chronically Sick and Disabled Persons Act 1970 (CSDPA), and so no Council can have such a policy or seek to introduce this policy in the future.

Mr Rook of law firm Irwin Mitchell explains further: “As a result of the postcode lottery and this restrictive policy our clients and potentially thousands of others who are simply unable to cope without 24/7 support are being deprived of the opportunity to receive the help they need to live safely and to enjoy a fulfilling life.

Mencap, the UK’s leading charity for people with a learning disability, is supporting the legal action.

Mark Goldring, Mencap’s chief executive, says: “Over the past few years many people with a learning disability have lost vital care and support because councils have been tightening their social care eligibility criteria to save money. The impact of these changes has been highly detrimental, as, without this support, people with a learning disability face a real struggle to live full, independent and safe lives, and an ever greater strain is placed on family carers.

“Local authorities have a duty to keep vulnerable people safe and provide them with support. By operating a critical-only policy, where even those with substantial needs are deprived of care services, a local authority is shirking its responsibility to some of the most vulnerable people in our society."