Green light for legal challenge against council cap on care packages

Judicial review to go ahead against maximum expenditure policy, which critics warn will force disabled people into residential care.

Picture credit: Image Source/Rex Features
Picture credit: Image Source/Rex Features

A legal challenge against a council policy that critics warn will force disabled people into residential care has been given the go ahead.







 

How the maximum expenditure policy would work

The policy would limit council spending on community care packages for new service users aged under 65 and existing younger adult clients who require reassessment because their needs can no longer be met within their existing personal budget.

For these clients, spending on care in the community would usually be limited to the cost to the council of meeting eligible needs in a care home, other than in exceptional circumstances. The council says a similar policy already exists for people aged 65 and over.

Where a proposed support plan exceeded the maximum expenditure limit it would be re-examined to see if needs could be met more cheaply; if not, individuals or their families would be invited to make up the difference, though this would need to be agreed by the resource allocation panel.

Where such top-ups are not possible, the panel would consider exceptional circumstances, such as whether the person’s family or working responsibilities would be adversely affected by a decision by the council not to fund the proposed support plan in full.

Where the panel rejects the support plan for being too expensive, social workers would then start discussing residential care options with the family. Individuals would be able to appeal against the panel’s decision to a separate panel of three senior managers

Source: Worcestershire Council

 

The High Court has given permission for a full judicial review against the decision-making behind Worcestershire Council’s maximum expenditure policy, which would set a limit on the amount the council will spend on supporting a disabled adult in the community equivalent to the cost of meeting their eligible needs in a care home. The council has agreed not to implement the policy, pending the outcome of the legal challenge.

The case has been brought by a 17-year-old, known as D, with moderate learning disability, epilepsy and autistic traits, and behaviour that challenges services, who is about to start accessing adult social care. His legal firm, Irwin Mitchell, said that the teenager and his mother were worried that he would be forced to live in residential care as a result of the maximum expenditure policy.

Polly Sweeney, who is representing D, said: “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.”

The grounds of the challenge, which was lodged at the end of last year, are twofold:

1. That the council’s consultation on the policy, from May to September 2012, was not lawful, on the basis that it did not provide sufficient information about the proposals;

2. The council failed to fulfil its duty, under section 149 of the Equality Act 2010, to have due regard to the need to promote equality for disabled people, by not adequately assessing the policy’s impact on disabled people.

Simon Mallinson, Worcestershire council’s head of legal and democratic services, said: “The High Court has only given permission for the legal challenge to be heard, and has made no decision that the policy is unlawful. 

“The council is committed to ensuring all eligible needs are met, and believes the policy would make the most efficient use of the funding available, allowing it to go where it is most needed. We do not accept that it is unlawful to make best use of council taxpayers’ money, but pending the outcome of this challenge, we have chosen not to implement the policy in the meantime to avoid potential disruption.”

The council has previously said that the policy does not amount to a cap on community care packages and that nobody would be forced to move into residential care as a result.

The authority has estimated that the policy would save £200,000 in its first full year of implementation and £500,000 over the first four years, though it is unable to specify how many people would be affected.

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