What social care cuts mean for the likelihood of legal challenges to local authorities

When Elaine* heard about the cuts to the care package she feared she would be unable to cope.

For the past 14 years she had provided round the clock care at home to Katie*, her niece who has learning disabilities and ‘challenging behaviour’. Now the local authority told Elaine they planned to halve Katie’s residential respite care entitlement and introduce cuts that would see her unable to attend a day centre she used four days a week.

“When she is at home with me she can get up from 3am onwards, so for her to lose respite or the day centre would be traumatic for her and for me,” says Elaine. “Without the day centre I could not catch up on my sleep and catch up on what I need to do in the house when she comes back. Without the day centre I would have burned myself out years ago”.

With help from her MP and local Citizens Advice bureau, Elaine successfully challenged some of the planned cuts to Katie’s care package via her local authority’s complaints process. Yet the council still plans to stop Katie from being able to use the respite residential care placement she’s familiar with. Elaine plans to challenge the council via a judicial review.

A growing number of carers and service users have been on the receiving end of similar news in recent years as councils struggle to make year-on-year cost savings, and Community Care has found that care packages have been earmarked for significant savings in 2014-15.

With no end in sight to the relentless pressure on councils to cut budgets, will local authorities see more people mount similar legal challenges to Elaine?

‘We are seeing flaws in assessments’
Richard Copson, Elaine’s lawyer and a disability rights specialist at Slater and Gordon, believes the number of legal challenges will grow. He says the severe pressure on local authorities to save money means they are more likely to assess people or define their ‘eligible’ needs in ways that are open to legal challenges.

“We are seeing flaws in the assessments and I can’t see that getting anything other than worse if councils are struggling with finances elsewhere,” says Copson. “The environment of budget-led decisions does not lend itself to the comprehensive, person-centred assessment process which is required.”

Like many lawyers we spoke to, Copson is sympathetic to the fact that councils are under pressure from central government cuts, but, he adds, “we are still entitled to a comprehensive assessment of needs and to know that decisions have been made with reference to eligibility criteria.”

The impact of legal aid changes
Yet other legal experts point out that even if more service users and carers wish to mount legal challenges against local authority decisions, they may not be able to access the legal support to do so.

Under reforms to legal aid introduced this month, solicitors will not normally be paid by the legal aid fund for unsuccessful applications they make for permission to bring a judicial review. The move could put firms off taking on certain cases, some lawyers say.

“If the number of cases is going down it does not necessarily mean number of underlying challenges are going down; it is just that people cannot access a lawyer and bring the cases,” says Alison Millar, partner at law firm Leigh Day.

Simon Garlick, head of the health and social care law department at solicitors Ben Hoare Bell, says that confusion over the reforms has also led to some people mistakenly believing that legal aid has stopped altogether for community care cases.

“The message has gone out to citizens that there is no more legal aid. But there is in community care,” he says.

Another reason why some cases never get taken to court is that some social care users may simply not have the energy for a prolonged fight about their funding, says Garlick.

“People are very ground down by this – individuals and families – so are quite frequently not challenging reductions,” he says.

How local authorities end up challenged
So what is the situation facing local authorities? How can they balance the pressure to cut budgets while ensuring that they meet their legal duties in social care?

Lawyers acting for councils told us that judicial reviews tend to hinge on whether councils have acted lawfully and rationally, for example by following the proper procedures for assessing people, applying eligibility criteria and arriving at their care plan and personal budget. Challenges to service closures tend to be brought on the grounds that consultations were not carried out properly or because the council has not complied with its public sector equality duty. This specifies that councils must have regard to the need to promote equality of opportunity for groups including disabled people in their decision-making. Consequently councils can cut funding and close services without risking a successful legal challenge as long as they follow proper legal procedures in doing so.

Only a small proportion of cases ever reach court. Simon Goacher, partner at Weightmans a law firm which often acts for local authorities, says decisions affecting groups of people – such as the closure of services – are more likely to end up in court than individual complaints. The latter, he says, are most likely to be handled through councils’ complaints processes or by the local government ombudsman.
“Generally most cases will not go to court either because the council decides to review its decision or because a robust response results in the claim going no further,” he says. For example a council could rectify flaws in procedure, such as a consultation, but still reach the same decision on closing or cutting services.

He adds that courts are reluctant to interfere in council decision making, citing the Administrative Court’s decision not to quash Shropshire council’s closure of a day centre even though it found the council had acted unlawfully because by not consulting properly.

“Councils should not be complacent because there are examples of successful challenges being brought but they should not be overly fearful either,” he adds.

The impact of the Care Bill
One key change that promises to further change the legal landscape and council budgets is the implementation of the Care Bill next year. The legislation will see the introduction of national eligibility criteria for care – rather than locally determined ones – and a clause allowing for the introduction of a new appeals system, the detail of which has yet to be set out.

Morris Hill, associate in the health and social care team at Weightmans, says: “I suspect that with the introduction of a national eligibly criteria the number of challenges will in fact increase, which in turn will have ramifications for the council’s financial position.”

While discussions about the impact of the Care Bill are likely to loom large in the thoughts of council leaders and policymakers over the next 12 months, Elaine faces more immediate concerns.

Katie’s welfare benefits have been cut too and the pair have had to turn to food banks for help. While the local authority is the focus of her forthcoming legal challenge, she feels central government cuts to council budgets and welfare have a lot to answer for.

“They [the government] are depriving the truly needy of the resources to live,” she says. “The first people that get hit when there are cuts are the sick, the old and the infirm which is wrong.”
*Names have been changed