Another council faces legal action over care threshold

Isle of Wight Council faces a legal challenge over its decision to raise eligibility thresholds for adult care, limiting access to those with substantial needs.

A hearing at the High Court in London next Thursday will decide whether to allow a full judicial review of the council’s decision to raise its threshold from 1 April 2011. Under the policy, the council willl meet critical care needs but only those substantial needs where people are at greatest risk of not being able to remain at home and stay safe. It previously had a substantial threshold and the decision was expected to save £1m in 2011-12 and £1.6m in 2012-13.

Respondents to the Isle of Wight’s consultation on the issue raised concerns that people with substantial needs would go into crisis more quickly as the council withdrew support.

In response, the council pointed out that annual spending on people in the substantial band would only be reduced from £7.5m to £6.3m from 2010-11 to 2011-12 as a result of the change, and that staff had been trained in identifying individuals at most risk, who would still receive support from the council.

The case follows two successful attempts to overturn council decisions to set critical only thresholds in the past four years. Both involved councils failing to uphold their duty to have due regard to promoting equality for disabled people under the Disability Discrimination Act 1995.

In 2007, Harrow Council’s decision to raise thresholds from substantial to critical was ruled unlawful by the High Court. Specifically, it did not proactively seek the views of disabled people on the plan and its equality impact assessment did not mention any steps to prevent the policy disadvantaging disabled people. Harrow today retains a substantial threshold.

Earlier this year, the High Court ruled Birmingham’s plan to raise thresholds from substantial to critical unlawful, on the basis that it failed to assess the practical impact of the decision on people with substantial care needs. Birmingham was ordered to reset its adult social care budget for 2011-12.

The claimants in the Isle of Wight case are being represented by Irwin Mitchell, the law firm that successfully brought the Birmingham challenge.

As Community Care reported this week, there was a 45% rise in judicial review challenges against council social care decisions last year, on the back of council proposals to make cuts.

In addition, one in 10 councils may have breached their equality duties, including to disabled people, by setting budgets for adult social care before or at the end of the consultation period on the proposals. However, Isle of Wight was not among this group, having set its budget 39 days after the end of the consultation.

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