Judge slams council’s consultation over critical threshold

A judge has slammed Birmingham Council for failing to consider how its bid to raise adult care eligibility threshold to critical would affect those with substantial needs.

The criticism came in Mr Justice Walker’s full judgement on his decision to overturn Birmingham’s decision to raise criteria on the grounds that it failed to comply with the Disability Discrimination Act 1995.

The judge said the council had breached its duty to promote disabled people’s equality.

“The consultation [on the council’s proposals] had not involved any attempt to look at the practical detail of what the move to ‘critical only’ would entail,” he said. “There was no analysis of how and to what extent any mitigation measures would be effective in addressing adverse impacts. In particular, there was no consideration of the extent to which alternative resources in the community would be available for those with substantial needs, and no other steps to mitigate the impact on disabled people were identified,” he added.

Polly Sweeney, solicitor for Irwin Mitchell, who represented the four disabled people bringing the case, said the decision would set a precedent for other councils and stop cost-cutting drives hitting vulnerable people.

“This is a hugely important victory not just for the four individuals involved in this case, but also for the thousands of other people affected across Birmingham,” said Sweeney. “These people and their families rely heavily on this care and it would have represented a huge backward step if the funding was removed.”

Campaign groups welcomed the ruling.

“This judgement makes clear that councils must consider the impact of their decisions on disabled people, and that a tick-box approach is not good enough,” said Mark Lever, chief executive of the National Autistic Society. “People with disabilities deserve to be properly consulted on the decisions that affect them and included in the process in a meaningful way, which did not happen in this case.”

Kari Gerstheimer, head of legal services at deafblind charity Sense, added: “This judgment sends a strong message to councils around the country that even though we are in a climate of cuts, a civilised society must never choose to cut services to disabled people who have the greatest needs.”

Local MP and shadow minister for local government, Jack Dromey used the judgement to attack communities secretary Eric Pickles for his planned 28% real terms cut in council funding from 2011-15.

“He took £6bn out of local government, £212m in Birmingham alone this year, the biggest cuts in local government history,” said Dromey. “And he then said to the elderly and disabled in Birmingham, for whom care is the difference between life and no life, ‘nothing to do with me.’ Eric Pickles washed his hands of responsibility in an act which would not disgrace Pontius Pilate,” he added.

Responding to the judgement, Peter Hay, director of adults and communities at Birmingham Council, said: “There is no new money as a result of the judgement and hard choices about meeting growing needs with fewer resources will have to be made by local authorities.” Members of the council will now consider how to fund adult social care in the future, he added.

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