The number of legal challenges to council social care policies rose by 45% last year and more are being successful, an investigation by Community Care has revealed.
A survey of 89 councils showed they had received 425 letters before action, the first stage of any judicial review application, in 2010-11 compared with 293 in 2009-10, in relation to children’s or adults’ social care decisions.
“The rise in applications is probably a combination of desperation [on the part of claimants] and the publicity of other challenges alerting people to the possibility,” said Ed Mitchell, editor of Social Care Law Today and Community Care columnist. “Bringing a legal claim against a public body is normally a last resort because it can harm ongoing relationships for many organisations which usually do some work with the council already.”
Chris Fry, managing partner at Unity Law, which has handled a number of such cases, said the rise was driven by the pace of cuts being demanded of councils by the national government.
The success rate of resolved cases rose slightly from 26% to 30%, although 144 of the 425 challenges brought in 2010-11 are yet to be resolved.
Stephen Broach, barrister at Doughty Street Chambers who worked on a successful challenge to Birmingham Council’s adult social care budget earlier this year, said many of the outstanding cases were likely to be won because those with little prospect of success were more likely to be dropped early.
Sarah Pickup, vice-president of the Association of Directors of Adult Social Services, said the relatively stable success rate of challenges showed councils were making tough decisions properly despite the short timescales.
She added: “The increase in challenges will put a strain on councils’ resources but it’s not surprising given the budget reductions that we are having to make. Most [savings] are being made through reconfiguration, not cuts, but still some people will be unhappy.”
Besides the Birmingham case, London Councils was forced this year to re-run its consultation on cuts to voluntary sector organisations, including homelessness charities, after losing a judicial review challenge.
The umbrella body for the capital’s boroughs failed to give due regard to the need to eliminate unlawful discrimination, promote equality of opportunity and promote good race relations, as it was required to do, ruled the High Court.
Mr Justice Walker said the council had failed to comply with its duty to pay due regard to the impact of its decisions on disabled people, under the Disability Discrimination Act. Consultation on the plans “had not involved any attempt to look at the practical detail of what the move to ‘critical only’ would entail”, and “no steps to mitigate the impact on disabled people were identified”.
The council was forced to reset its adult care budget for 2011-12.
After the judgement, Peter Hay, strategic director of adults and communities at Birmingham, said he expected other councils to be on similarly shaky legal ground.
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