Ed Mitchell on court cases that should make councils looking to make cuts sit up and take notice.
Reducing spending on adult care services is easier in theory than in practice. Among the obstacles faced by councils looking to make savings is the law. The latest resourcing disputes to come before the courts are likely to be a taste of what is in store for many local authorities as spending pressures, and related disputes, intensify.
The general equality duties have provided a new weapon in the armoury of those challenging service reorganisations or reductions. Of particular relevance is the general disability equality duty. Contained in section 49A of the Disability Discrimination Act 1995, this requires public authorities to have regard to a range of needs in carrying out their functions, for example the need to promote equality of opportunity for disabled people.
In the widely reported cases of R (Boyejo & Others) v Barnet LBC and R (Smith) v Portsmouth CC (December 2009) two councils’ decisions to cease providing resident wardens for sheltered housing were quashed. In both cases, the councils had failed to ensure that the decision maker was aware of the general disability equality duties when taking the decisions to stop providing resident wardens. The message is clear. Councils should ensure that, when they are reorganising services, decision makers have their attention expressly drawn to the general disability equality duties.
There have been so many legal challenges to proposed care home closures in recent years that most councils are now adept at ensuring that, in closing homes, they act within the law. So it was not surprising that the Court of Appeal in R (Turner) v Southampton CC (November 2009) rejected a challenge based on the assertion that relocation of care home residents inevitably reduces their life expectancies.
Care home closures
The court also expressed “concern” at a recent proliferation of publicly funded challenges to decisions to close care homes (which is likely to mean Legal Services Commission funding for such challenges becoming harder to obtain).
Nowadays, most successful challenges to service reorganisation are based on non-compliance with the disability equality duty. The High Court’s decision in R(B) v Worcestershire CC (April 2009) was different in that it concerned an error that is now quite rarely seen. Worcester Council decided to close a high-intensity day centre for four adults with multiple and profound learning disabilities. The council asserted that their needs could continue to be met at another day centre.
However, there had been no analysis of whether the adults’ eligible needs could be met within the fixed resources on offer at the alternative centre. The decision to close the adults’ day centre was quashed.
Probably every local authority’s worst nightmare came true for Manchester Council when a service user thought to have the most expensive care package in the country (£650,000 a year) voluntarily became ordinarily resident in their area. Manchester went to court to try and show that the service user’s original service provider, St Helens BC, retained responsibility for meeting her care needs. In R (Manchester CC) v St Helens BC the Court of Appeal rejected Manchester’s argument and so they are now responsible for the service user. The court also expressed surprise that public money had been used to pursue this legal case.
Ed Mitchell is a solicitor and editor of Social Care Law Today