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How to use the law to fight social care spending cuts

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With more than 150,000 local authority jobs under threat, and councils proposing to cut services due to funding pressures, social care staff and service users are increasingly concerned about their prospects. But there may be ways in which they can use the law to challenge and overturn councils’ decisions.

Social care workers and service users who feel that local authorities have failed to follow the correct procedures when making decisions to cut services can look to human rights law, equality legislation and case law on consultation processes (see below), according to Ed Mitchell, editor of Social Care Law Today and Community Care‘s legal adviser.

These laws are most likely to be useful in challenges to the decision-making process, and not to actual decisions to outsource certain services rather than directly provide them.

However, there are some notable exceptions where councils must continue to provide a service or function in-house. These include safeguarding and welfare responsibilities introduced by the Children Act 2004, particularly the requirement to have a local safeguarding children board, though these can be set up jointly by more than one council.

Local authorities must also carry out specific child protection duties, though the Children Act 2008 allowed some councils to devolve responsibility of these to independent social work practice pilots.

In these cases, local authorities must still assure themselves that their statutory duties are being performed by the delegated provider.

Here, Community Care outlines some of the key issues for social care staff to consider if they wish to challenge cuts.

ASSESSMENT DUTIES

Councils still retain core duties to assess eligibility for services, even if they are cutting budgets.

“Local authorities that are cutting budgets without proper regard to complying with duties are storing up trouble,” says Steve Broach, a barrister at Doughty Street Chambers in London who has produced a guide to the law and social care for Every Disabled Child Matters. “The courts will always be sympathetic to individuals who have been getting services and are no longer receiving them.

“It’s not going to be enough for local authorities to say they have found 12% savings in the budget. Courts might ask them where they have found it and what else they could do to cut spending.”

Mitchell says: “Local authorities can’t wash their hands of service users and public money.

“When it comes to the range of services offered, courts recognise the budgetary difficulties local authorities are facing, so allow them to have eligibility criteria.

“But there’s a floor beneath which local authorities cannot go when it comes to children’s services and community care services. This derives from human rights law – if you have a set amount of money, there are certain people who are, for example, so disabled and needy that they are always going to be entitled to services.”

In adults’ services, local authorities determine eligibility to receive services using the Fair Access to Care Services (FACS) criteria, which set four levels of need: low, moderate, substantial and critical, the threshold being adopted by an increasing number of councils.

Mitchell says local authorities that “properly apply” FACS criteria are unlikely to leave themselves open to legal challenges because they will automatically identify people with the most severe needs.

However, local authorities tend to face more legal problems due to the way they carry out the (re)assessment processes. “Before services are withdrawn there should be a reassessment of need rather than, for example, cutting everybody’s home help or night-sitting services,” Mitchell adds.

CONSULTATION

Although there are no strict rules that set the timescales and defined scope and scale of consultation exercises, local authorities could still face legal challenges if they the process is flawed.

“In most cases it’s likely that, before implementing an across-the-board restriction of criteria or service cuts, local authorities should consult interested parties,” says Mitchell. “Most of them tend to do that these days but challenges tend to be made on the quality of consultation exercises – for example, whether enough time was given.”

Although there are no legal requirements on the length of consultations, Mitchell says three months is considered to be good practice.

Broach says there’s a “good chance that the courts would question any decision taken without consultation”.

He adds: “Local authorities have to give a reasonable time for a proper response and that would be judged on each individual case. They’ve got to provide sufficient information so people can make intelligent responses. A lot of consultation documents I’ve seen are woefully thin on the background to and impact of decisions.

“The consequence of not consulting properly is that they will be made by the court to go back and do it again and do it properly, and won’t be able to take a decision unless they have done this.”

Courts would also look at the “rationality” and “proportionality” of local authority proposals, Broach says. “Local authorities would have to prove there was a balance struck between the rights of people being affected and the wider need to save money.”

KEY JUDGEMENT:

R v North and East Devon Health Authority ex parte Pamela Coughlan: this often-cited judgement on continuing care responsibilities set a clear expectation that, if councils do consult on their decisions, they must do so properly. The initial reserved judgement in 1998 said the authority’s decisions were biased in part due to a consultation process that was “vitiated by pre-judgment, non-disclosure of materials and inadequate time for response”. A 1999 Court of Appeal ruling in the case said the consultation process, though not unlawful, was “open to criticism”.

EQUALITY AND HUMAN RIGHTS LEGISLATION

Local authorities could also be challenged under equality legislation, including the Disability Discrimination Act 1995, the Race Relations Act 2000 and, from April 2011, the public sector equality duty introduced by the Equality Act 2010, which will replace the existing race, disability and gender equality duties.

When making decisions, public bodies have to undertake an equality impact assessment and have regard to a range of needs, such as ensuring people with disabilities have equality of opportunity with those without disabilities. This was highlighted in the Chavda v Harrow judgement in 2008 (see below).

Professor Michael Preston-Shoot, dean of the faculty of health and social sciences at University of Bedfordshire, says local authorities have a positive duty to promote human rights, under the Human Rights Act 1998 and European Convention on Human Rights.

In addition, councils making decisions on the services they are providing to communities and to individuals must have regard to the impact on private and family life.

KEY JUDGEMENTS:

R (Chavda) v Harrow LBC: Judge Mackie QC concluded that decision-makers at Harrow Council unlawfully restricted adult care services to people with critical needs because they had not had “sufficiently drawn to their attention the seriousness and extent of the duties owed under the Disability Discrimination Act 2005″, particularly section 49A.

R (Boyejo) v Barnet LBC; R (Smith) v Portsmouth CC: decisions to discontinue resident warden services were unlawful because councils failed to have due regard to the “needs” set out in the general disability equality duties.

AVENUES FOR COMPLAINT

Most legal challenges and complaints are made by individual service users, often backed by voluntary sector organisations.

If complaints are not resolved through internal local authority procedures, cases can be taken to the local government ombudsman. Alternatively, an application can be made for judicial review of a council’s decision.

However, Broach points out that judicial review applications must be made no later than three months after a decision has been taken. “That time limit can be waived but it gets much harder after three months,” he says.

SOCIAL CARE LAW AND JOB CUTS

Social care law offers little support for staff threatened with redundancy because there are no requirements for local authorities to employ a certain number of staff to carry out specific duties.

Section 6 of the Local Authority Social Services Act 1970 only requires local authorities to appoint “adequate staff” to assist directors in exercising their functions, an omission described by Preston-Shoot as “one of the downsides of the legal system”.

“The requirement to have sufficient social workers to perform statutory duties has not been defined in any law or statutory guidance,” he adds.

In the absence of clear regulations, union reps are instead considering industrial action where appropriate to register their disapproval of council cuts. In Nottinghamshire, for example, Unison is balloting 3,700 local authority staff to take industrial action on 24 February, the day the council cabinet votes on its budget for 2011-12.

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