Legal challenge launched against council care spending cap

Policy of limiting spending on social care in the community risks forcing people into residential care, warn critics.

By Mithran Samuel on January 2, 2013 in Adults, Residential care, Workforce

How Worcestershire maximum expenditure policy would work

The policy, agreed in November but not yet introduced, would limit council spending on community care packages for new service users aged under 65 and those existing younger adult clients who require reassessment because their needs can no longer be met within their existing personal budget.

For these clients, spending on care in the community would usually be limited to the cost to the council of meeting eligible needs in a care home, other than in exceptional circumstances. The council says a similar policy already exists for people aged 65 and over.

Decisions on individual packages would be taken by the council’s resource allocation panel.

Where a proposed support plan exceeded the maximum expenditure limit it would be re-examined to see if needs could be met more cheaply; if not, individuals or their families would be invited to make up the difference, though this would need to be agreed by the panel.

Where such top-ups are not possible, the panel would consider exceptional circumstances, such as whether the person’s family or working responsibilities would be adversely affected by a decision by the council not to fund the proposed support plan in full.

Where the panel rejects the support plan for being too expensive, social workers would then start discussing residential care options with the family.

Individuals would be able to appeal against the panel’s decision to a separate panel of three senior managers.

Source: Draft policy for determining the usual maximum expenditure for non-residential packages, Worcestershire Council

A legal challenge has been lodged against a council policy to limit social care spending that critics warn will force younger adult clients into residential care.

A 16-year-old disabled man, known as D, has applied for a judicial review of Worcestershire Council’s maximum expenditure policy which would, usually, limit council spending on community-based care packages for those aged under 65 to the cost of meeting their needs in residential care (see right).

Grounds for legal challenge

D, who lives with his parents, has been diagnosed with a moderate learning disability and epilepsy, and has presented with challenging behaviour. The law firm representing him, Irwin Mitchell, said the challenge had been brought on two grounds:

1. That the council’s consultation on the policy, from May to September 2012, was not lawful, on the basis that it did not provide sufficient information about the proposals;

2. The council failed to fulfil its duty, under section 149 of the Equality Act 2010, to have due regard to the need to promote equality for disabled people, by not adequately assessing the policy’s impact on disabled people.

Irwin Mitchell public law specialist Polly Sweeney said D’s family wanted him to move into supported living in the future, but his needs meant he would require 24-hour support.

‘Forced into institutional care’

“If the council’s policy remains unchallenged, the costs of such a care package in the community may well be more than the costs of residential care,” she said. “This would mean that D would be forced into institutional care whilst his non-disabled peers are able to continue living in the community. It is cases such as this which we are concerned that the council has not properly considered through his consultation and decision making process.”

The council said the imminent legal proceedings made it inappropriate to comment on the policy, which would apply to new service users and those whose needs had changed significantly.

However, last year it denied claims that the policy amounted to a cap on funding on care packages in the community and said that “nobody would be forced to live in a residential home as a result of the policy”.

‘Choice is not limitless’

“The purpose of the policy is to use the cost of residential care as a starting point for the reasonable cost of meeting needs in the community and working with individuals to develop a package of care that balances choice and cost in a context that recognises choice is not limitless,” the council said.

The authority has estimated that the policy would save £200,000 in its first full year of implementation and £500,000 over the first four years, though it is unable to specify how many people would be affected.

Mithran Samuel is Community Care’s adults’ editor.

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