Fair Exclusion from Care Services part 2 – with a lawyers’ hat

The judicial review of Harrow trod a well-worn path when it was argued, unsuccessfully, that the consultation process was flawed; equally unsuccessfully that the decision was irrational. Two aspects of the challenge deserve more analysis.

Prioritising abuse

First, Harrow escaped a successful human rights challenge on the basis that it was premature. I suspect that it also did itself a big favour when, in response to its consultation exercise, it decided to prioritise abuse.

The argument goes something like this: the need for protection from serious abuse is, according to the government, a critical need, but the need for protection from abuse is a substantial need.

If substantial needs are ineligible, therefore, there would presumably be an “acceptable level of abuse”, falling below the eligibility threshold and remaining unmet need. The idea of an acceptable level of abuse is – I hope – contrary to human rights law. But Harrow agreed that it would prioritise all abuse, neatly kicking such a challenge into the long grass.

Disability Equality Duty

Secondly, where Harrow were caught out – where the residents succeeded and therefore won their judicial review – was the new Disability Equality Duty under which local authorities have a positive duty to work towards eliminating disability inequality.

The court has an interesting view of how the public sees discrimination legislation. It said, ““An important reason why the laws of discrimination have moved from derision to acceptance to respect over the last three decades has been the recognition of the importance not only of respecting rights but also of doing so visibly and clearly by recording the fact.”

In short, it was not the failure to provide services that the court found unacceptable. Rather, Harrow didn’t have its paperwork in order.

Bean counters' victory

The effect of the ruling simply requires Harrow to properly consider its Disability Equality Duty, and document how it has done so. Unless it finds itself unable to do so without restoring services to those from whom it has withdrawn them, Harrow might as well have won, for all the use the ruling will be to its service users. I confess I’m not holding my breath. It looks like a victory for the bean-counters. The inexorable logic of the statutory guidance has combined with the time-bomb of demography, to lawfully ration services. Fair Access to Care Services (FACS) is no more.

Allan Norman is Principal Social Worker & Solicitor at Celtic Knot, an independent law firm and social work practice.