One in 10 councils may have breached equality laws by failing to consult properly on cuts to adult care this year, an investigation by Community Care has revealed.
Ten per cent of councils went ahead with proposed changes to adult care services on the day they finished consulting on the changes or, in some cases, before this. Changes included increasing charges for care services and squeezing fees for care providers.
The lack of consultation was described by one commentator as a "sham".
Since 2006, councils have been under a duty to give due regard to the impact of their decisions on disabled people, a consideration that would apply to adult social care funding decisions.
Chris Fry, managing partner at Unity Law, which specialises in equality legislation, said it would be difficult for councils that had made a decision on or before the end of a consultation to demonstrate that the duty had been complied with.
"It's a shocking statistic," he said. "It means that 10% of councils are looking at the consultation process as a box-ticking exercise."
He said councils were leaving themselves exposed to "substantial legal costs" as a result.
"Most changes to adult social care at the moment are the biggest in a generation," he said. "They have to be taken carefully and with full consideration as to the impacts which they may have."
Ed Mitchell, editor of Social Care Law Today and Community Care columnist, said the results suggested the consultations were "a sham".
"It seems they had already made up their minds," he said.
Community Care's investigation was based on responses from 73 English councils to requests for information under the Freedom of Information Act.
Suffolk Council closed its consultation and set its budget on the same day. "I would say this is typical of the council's behaviour," said Leah Jordan, chair of the Suffolk Coalition of Disabled People.
She said the upshot of inadequate consultation was services that were not designed with service users in mind.
However, Sarah Pickup, vice-president of the Association of Directors of Adult Social Services, said it was normal for councils to set budgets with decisions about service changes or savings made in principle, allowing them to be changed after consultation.
"You could have a budget which says that you will save £2m 'subject to consultation'," she said, adding that councils often add extra proposals in the knowledge some would change later.
Two councils that responded to Community Care said they had done this. Legal experts say councils that are challenged need to be able to show that the decision is genuinely open to change.
Pickup said it was possible that some councils were failing to comply with their duties but that this was not done in bad faith.
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Three councils that moved quickly to approve their social care budgets
Slough finished its consultation on budget and service changes nearly two weeks after the adult social care budget was set. The budget included savings of £2.25m to the council's community and well-being department, including a £585,000 cut to Supporting People.
"We operate within tight time constraints in setting our budgets and take consultation with our residents very seriously," said a spokesperson
"To ensure our community groups can participate in discussions about the budget before the final decision, we will in the future broaden the time the final budget is available for consultation and scrutiny." Suffolk Council
Suffolk closed the consultation on its adult social care budget on the same day as its cabinet approved it, though the consultation did last 14 weeks, longer than the standard 12.
The budget included savings of £12.4m in adult social care for 2011-12, including higher charges for non-residential services and cuts to the voluntary sector and to Supporting People funding.
The budget book said these cuts were "essential" to delivering the council's savings programme.
"All budget proposals were subject to appropriate impact assessments," a spokesperson said. "The council's priority throughout was to protect the most vulnerable people in Suffolk." South Gloucestershire
South Gloucestershire closed its consultation on the same day it set its budget.
"We believe in allowing our residents every opportunity to take part, and so made it possible to receive comments all the way up to the point at which the final decisions were taken," a spokesperson said.
The budget stated £9.2m would need to be saved across all departments. However, it did provide for a £2.7m addition to adult care spending to deal with demand and minimise the risk of overspending.
Its consultation received 2,000 responses between September 2010 and February 2011.
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