Last week it was revealed a severely disabled man’s legal battle against a 40% cut to his personal budget had ended in failure.
The High Court dismissed Luke Davey’s judicial review against Oxfordshire council. The judge acknowledged the cut could impose “unwelcome” limits on Davey’s life, but he ruled the council had acted lawfully and met its Care Act duties.
The case is the first High Court challenge to test a council’s compliance with the Care Act’s wellbeing principle. But the underlying issue of care package cuts is far from unusual as councils struggle to plug a social care funding gap sector leaders say will hit £2.6bn by 2020.
After seven successive years of austerity, social services directors warn there are few “efficiencies” left. Care packages, particularly intensive community support, are now being tightly scrutinised. The pressure to find savings, legal experts say, has left councils pursuing “legally risky” policies that push the limits of the Care Act.
‘Costs and caps’
Among the most controversial are policies to review expensive home care packages against the equivalent cost of supporting someone in a care home. If a review finds council funding is insufficient to maintain a person’s community support, they are given the option of paying a top-up fee or moving to residential care.
North Somerset council approved a ‘fair care’ policy along these lines last month. The authority estimates the move will save £700,000 over the next four years but an impact assessment acknowledges the plan could also see more disabled people move into care homes.
Bedford council brought in a similar policy last year, also called ‘fair care’. The council denied the policy was driven by the desire to save money. Yet cabinet papers state it was introduced because of concerns about the ability to fund increasing numbers of complex and expensive home care packages, which were “significantly exceeding” the cost of care home placements.
The wording of these policies is particularly significant. Section 10.27 of the Care Act guidance states that a council should not “set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes”. However, it does allow local authorities to “reasonably consider” their own finances when meeting needs and take decisions on a case-by-case basis.
The ‘fair care’ policies walk a tightrope between the two. Bedford’s website clearly describes its policy as placing a “cap” on home care packages, whereas North Somerset stresses its policy is only guidance and not a “cap or limit”. Both include the caveat that when the policy is applied, decisions about care will still be made according to “individual circumstances”.
‘Institutionalisation fears’
Disability campaigners have also questioned what an approach to care package savings – that could see more disabled people move to care homes – means for the right to independent living. The Care Act guidance, this time section 1.19, states that “supporting people to live as independently as possible, for as long as possible” is a guiding principle of the legislation.
Liz Sayce, chief executive of Disability Rights UK, said: “Disabled people campaigned hard for independent living and disabled people’s organisations have worked with social services departments to make it a reality in many areas. We have already seen significant cuts to disabled people’s personal budgets. Further cuts will jeopardise independent living.”
A third issue is whether the policies will actually deliver for councils or service users. Medway council abandoned plans to introduce a similar reviews policy earlier this year. Explaining the U-turn, the council said its consultation revealed service users feared they’d be forced into care homes as the cheapest option. Medway’s own research, meanwhile, found that other councils who had implemented the approach hadn’t generated the anticipated savings.
‘Extremely difficult’
Whether they pursue these policies or not, the pressures on councils to find more savings from care packages will continue. Authorities have worked hard to protect adult social care from the worst of the cuts, but the challenge of supporting an ageing population with less central government funding remains.
Margaret Willcox, president elect of the Association of Directors of Adult Social Services, sums up the dilemma facing councils.
“Our ambition is to try and keep people in their own homes as much as possible, if that’s not the case then in a home in the community that’s as near to independent living as possible. But some people, depending on their needs, will not be able to manage at home.
“The money’s getting very tight. Councils will work their way through obvious ways of making the money go further – they will look at efficiencies first, then alternatives to what they do, but then ultimately they will have to look at what is a fair amount for that person’s expectation.
“That’s where it gets extremely difficult; I don’t think it’s going to get any easier.”
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In reality forcing people into residential and nursing homes when they can be supported in their homes will mean that a significant amount of people will end up paying for their own care when they are forced to either sell their property or defer payments to fund their placement. Surely this can be challenged in court. It is disgraceful that the courts judgement supported the councils. I am only glad that I no longer manage teams of adult Social Workers.
Is there ‘a right to independent living’? I don’t think we signed up to this. We all know why. Bring on the challenges under Article 8.
Whilst I agree that it is disgraceful that service users could have to go into institutional care if independent support is more costly, we have to remember that the public has voted for these restrictions. The Govt and coalition have been clear that they will reduce councils funding and disability benefit funding – yet still people vote for them, including the families of people who will suffer, and those people themselves.
It is no good complaining at councils or public servants. We need to be clear with the public – if you don’t want this, vote in a decent caring government!!
As much as you may wish to pass the buck here, you’d be better off informing yourself that it was less than 25% of ‘the public’ the voted conservative last election, and it wasn’t ‘the public’ that assessed the poor man in the recent article as not needing the care he previously had (and still requested) – it was his social worker.
Still. Blame everyone else.
Hello Northern Poorhouse. I agree with much of your analysis. It is certainly true that Tories voted for these restrictions and as is frequently pointed out cuts against scroungers and that it includes physically disabled people are very popular. We have been here before in history and clearly cuts and Austerity are going to continue under the Scum party. My guess is that many people remember Little Britain and their perception of people with disabilities are based on that. People believe what they want to believe. Many people feel aggrieved about their own position in life and to that end want to blame other people, scroungers, benefit people, the disabled. It is only going to get worse over the next few years. Local Authorities are now starting to pass on the cuts to their budgets to service users and as we have seen with the Independent Living fund withdrawal, the courts sided with the Government on these cuts. Disabled people are great targets they can’t fight back and soon their voice will be silenced as they are locked away in institutional care to save money. Stop voting for scum Tory Governments is one solution, growing the economy is another option, but GB is not very good at that.
I am sorry but all of the posted comments appear to be based on a misunderstanding of one sort or another; over the past few weeks I have seen an OT who works for an NHS Trust boasting about how she has safely reduced 80% of care packages and then the Chief Executive of that NHS Trust retweeting her posted comment in support of its contents. Since when is an 80% so called safe reduction been safe and the simple fact that her NHS Trust Chief Executive supporting it shows the path this is all going
A care package can be reduced by 80% safely when it has been grossly or carelessly over funded in the first instance. There won’t be many of these but there are certainly some
I had had 21 hours per week for years and then at the end of last May was let down COMPLETELY with ZERO Council support. Even my Personal Care was stopped.
I can only afford 1 hour per day to pay privately.
I am now on the waiting list for a nursing home.
I could not even find a lawyer to sue the Council, I was refused by all (more than 10) that I contacted.
Moreover there is not even a Citizens’ Advice Bureau in this part of Scotland.
I could only complain WITHIN the Council; there seems to be no human institution ABOVE the Council at all.
I got my Personal Care as long as I was still under 65 and had financially to contribute to the costs.
As soon I got 65 in April 2015 and Personal Care became free for me, the difficulties started, until in May 2016 I was reduced from 15 hours weekly to ZERO support!
Is this the way how they try to get rid of the other sixty-fivers?
I have a big mouth, I used to be a college teacher, but I am sure that less resilient senior citizens are not only being left in their own dirt but might have already DIED!
But almost nobody seems to notice what is going on!
If you survive without their care, that’s the proof that you don’t need it; if you don’t ,it’s not surprising at all because you were old enough and had a lot of health issues anyway!
Appalling – local press, local councillors? I’m sure you’ve done it all but I really don’t believe the general public sees what is going on in this kind of detail
So has person centred care now gone to the wall? What about personal choice and valuing difference and treating individuals in a way that is unique and imaginative? This all means nothing when there is no money. Thank God I know longer work for social services.
You know, apparently Corbyn is a really decent bloke with honest principles, that I believe in. This makes him unelectable. So to be electable by the “rest of the public” he needs to embody all the disgusting qualities that give rise to the outcomes described. So if Corbyn did have those qualities the “rest of the public” would elect him. But we have already got those disgusting qualities, from the “rest of the public”. I dont want those disgusting qualities. So I will vote for those honest principles, not like the “rest of the public”.
A point to analyse is the purpose of a Judicial Review, and whether its the right tool for the particular job. This is a very tightly framed hair splitting game, and difficult to achieve an outcome that benefits the claimant. The claimants legal team will have to sharpen their pencil an choose to take a different tool for the job. Either way this fight has to be fought and never give in.
I am not sure how judicial review comes into this