Unlawful threshold rise sends message to councils on care cuts

The Isle of Wight Council’s increase in eligibility thresholds for adult care this year was unlawful, it was ruled today, in a judgement today that “sends a very clear message” to other councils considering cuts.

The council failed to take into account the impact of its decision to exclude some people with substantial needs from support, breaching the Disability Discrimination Act 1995, Mrs Justice Lang ruled at the High Court.

It must now return its eligibility threshold to substantial.

“This landmark victory sends out a very clear message to all councils in England and Wales,” said Alex Rook of Irwin Mitchell, the law firm representing the claimants, two severely disabled residents from the island.

“The judge has ruled that the consultation the council undertook did not involve proper consideration of the practical detail of what the move to this new policy would entail even were it lawful, and the council had very little information about the impact that this would have on people’s lives before it when it took this decision.

“The reality is that the council simply did not know what the effects would be – other than how much money would be saved – and so the court has declared the council also to be in breach of its obligations under the Disability Discrimination Act.”

The judge said the consultation document on the plan provided no detail on the number of users whose support would be reduced or what services would be covered by the revised criteria, leaving users unable to make an informed response. An equality impact assessment contained no evidence-based information about the specific impact on disabled people, nor explain the substantial needs that would be excluded from support.

The council said it was “disappointed” by the ruling but said it would not appeal it.

“We accept the judge’s decision that that we did not provide sufficient information and that, in our attempts to explain what was a complex decision, we unintentionally breached some elements of the guidance,” said council leader David Pugh and cabinet member for adult social care, housing and community safety Roger Mazillus.

Of 708 service users reassessed as a result of the new threshold – which limited council-funded care to people with critical needs and to those with substantial needs “at greatest risk of being unable to remain at home safely” – just 32 experienced a reduction or withdrawal of services.

Pugh and Mazillus said staff would be contacting the 32 immediately to reassess their needs against the reinstituted substantial threshold.

The ruling was welcomed by charities including Age UK and the National Autistic Society, which provided evidence to the court over the impact of the cuts on people with autism, such as the two claimants.

“The NAS now calls on other local authorities to recognise the national implications of the ruling and ensure they are fulfilling their statutory obligations for adult social care,” said chief operating officer Mark Milton. “Cutting vital services to satisfy budgetary targets is not a viable solution and can actually create greater financial pressures in the long run.

This is the third time that a council has been forced to reverse a decision to increase eligibility thresholds because of a breach of the Disability Discrimination Act, the others being Birmingham, earlier this year, and Harrow in 2007.

It is also the second significant ruling against council cuts in as many days, after a judge ordered Sefton Council to review its decision to freeze fees to residential care providers because it had failed to assess how the fees would enable providers to meet assessed care needs.

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