Teenager Who Fears Being Forced Into Residential Care Will Get Full Judicial Review Over Policy to Cap Care Costs

By Dave Grimshaw

A teenager has been given permission to take Worcestershire County Council to a full Judicial Review over the process which led to approval of a policy which they say may force many people into residential care as the Council will place a cap on the amount of money which they will contribute to care packages if people choose to live in the community.

Expert public lawyers at Irwin Mitchell, which has already successfully challenged Council cuts to care for the vulnerable in other regions, say the council failed to have due regard to its duties under the Equality Act when deciding on its ‘Maximum Expenditure Policy’. They also allege that the council has failed to undertake a lawful consultation.

A High Court judge today granted permission for Irwin Mitchell and the teenager, supported by his mother acting as his litigation friend, to take the matter to a full Judicial Review hearing after the council refused to review their decision on the policy and re-consult.

It is believed to be the first time this policy has been employed by a Council in England and Wales when cutting social care budgets for vulnerable and disabled people.

The policy places a “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 Council Cabinet approved the policy on 8 November 2012 following a period of consultation which was widely criticised for being unclear and not providing sufficient information about the proposals. 

Polly Sweeney, a public law specialist at Irwin Mitchell represents the Claimant, she said: “The judge has now given permission for our client to challenge the council’s policy in court. The policy 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.”

The Claimant in the current legal action, who is known as D in order to protect his identity, is 17 years old and currently lives with his mother at their family home in Worcestershire. 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 mother’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. This policy will mean that 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.

D’s mother, has her own health difficulties, including having received 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 added: “Our client is determined to take action, not just for D himself, but to help others who may also be affected.

“It’s cases such as this which make us concerned that the Council has not properly considered through his consultation and decision making process. Whilst the Council has 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 proper regard to the impact on disabled people 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.”

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