Adult legal update on how councils must check the law before making cuts

As councils consider how to implement the spending cuts set out in this week’s comprehensive spending review, one issue they must bear in mind is the law, writes Ed Mitchell (pictured).

Regardless of funding pressures, some activities must be performed. This was brought home to the Western Health and Social Care Trust last month. In HN (A Minor) the Northern Ireland High Court held that the trust could not rely on budgetary pressures to justify a failure to comply with the statutory duty to carry out carers’ assessments.

Also, a council cannot change the care services it offers to the public overnight. The law requires a more orderly pro­cess that ensures scarce resources remain distributed according to need. This is shown by case law from the time when councils last faced a truly bleak funding picture. In R v Gloucestershire CC ex p Mahfood (1997), a council was held to have acted unlawfully by withdrawing services without first reassessing individual service users’ care needs.

The equality legislation has already upset some councils’ attempts to cut funding for voluntary organisations or reduce service levels. This legislation requires councils to have due regard to a range of needs. For example, section 49A of the Disability Discrimination Act 1995 refers to the need to promote equality of opportunity between disabled people and non-disabled people.

An example of non-compliance with section 49A derailing an attempt to reduce services was R (Chavda) v Harrow LBC (2008). In this a council’s decision to restrict community care services to people with critical needs was quashed because the authority could not show that its decision-makers had given due regard to the needs referred to in section 49A.

Cuts are inevitable, but they need to be carefully managed. Close liaison between councils and their lawyers is recommended in the development of strategies to implement budget cuts. Otherwise, funds that councils can ill afford to lose may end up being wasted in legal disputes.

Ed Mitchell is a solicitor and editor of Social Care Law Today

This article is published in the 21 October issue of Community Care magazine under the heading Budget pressures are no excuse for law breaking

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