Test case could outlaw critical threshold for adult care

Councils could be prevented from restricting adult social care to meeting people's 'critical' care needs by a legal challenge brought on behalf of five disabled people.

Councils could be prevented from only funding service users’ critical care needs under a test case that could result in thousands of older and disabled people gaining access to care.

West Berkshire Council, one of three councils with a critical threshold, along with Northumberland and Wokingham, is being challenged by five severely disabled residents currently denied the support they need in a case supported by the charity Mencap.

They are being represented by solicitors Irwin Mitchell, which successfully overturned moves to raise eligibility thresholds by Birmingham and Isle of Wight councils last year. While those cases succeeded because the two authorities failed to adequately assess the impact of the increased rationing of care on affected service users, this latest challenge focuses on the legality of setting a critical threshold itself.

Councils with critical thresholds do not provide formal care and support to meet people’s ‘substantial’ needs; these include an inability to carry out the majority of personal care tasks, or to undertake the majority of family or social roles, or suffering, or being at risk of, abuse or neglect, as opposed to serious abuse or neglect.

The five clients are:- 

  • Siblings Z and F, who have learning disabilities and autistic-like behaviours, and need support to be available around-the-clock for daily living and domestic tasks;
  • SW, who has a severe learning disability and epilepsy and is need of constant supervision;
  • HB, who has  a mild learning disability and has been assessed by the council as vulnerable to abuse and exploitation by her peers;
  • AT, who has diagnoses of autism and epilepsy, no speech, very limited communication abilities and displays behaviours that challenge.

“Many severely disabled people across the country rely heavily on the support that is offered by social care services, but not all of those fall under the umbrella of what is deemed ‘critical’. This policy in West Berkshire leaves our clients and possibly thousands of others both potentially vulnerable to harm and isolated from their local communities.”

West Berkshire Council has declined to comment while the case is ongoing. The High Court is set to decide over the next two weeks whether it will allow the challenge.

What is the basis of the challenge?

Irwin Mitchell argues that the critical threshold is in breach of section 2 of the Chronically Sick and Disabled Persons Act 1970, which places a duty on councils to provide a range of community care and support services for disabled people where local authorities determine that such provision is necessary in order to meet the needs of a disabled person.

In a landmark judgement in 1997 (R v Gloucestershire County Council, ex parte Barry), the House of Lords ruled that councils could take their resources into account in applying section 2.

However, in setting out the judgement, Lord Nicholls of Birkenhead said that councils needed to act in a “responsible fashion” and treat disabled people “reasonably”. Irwin Mitchell will contend that setting a critical threshold is unreasonable and that the judges in the Barry case could not have envisaged that their judgement could have been used to justify such a threshold.

The Fair Access to Care Services guidance, which established the four-band eligibility framework for adult social care (critical, substantial, moderate, low), came into force in 2003, six years after the Barry judgement.

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