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

As councils make deeper cuts to care packages, service users face bigger hurdles to bringing legal cases against these decisions

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

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

  1. anna tailor May 1, 2014 at 10:00 am #

    It is about time the cuts in adults social care budgets were challenged. Care providers are afraid to challenge because of repercussions, but by accepting the reduced care hour packages are legally agreeing to provide quality care. Less care hours inevitably affects the quality of care/life of people receiving services , it also has an impact on social care workers, with longer working hours, low pay and in some cases no increases in pay for the past 3 years, making recruitment difficult.

  2. Cynthia Godfrey May 1, 2014 at 10:40 am #

    I realise that the financial bill for those who require Care is becoming increasingly high, however, it is bad enough that the genuine carers have the 24 hour problem of looking after a loved one, but now to be faced with further cuts is a major tragedy for UK society.

    Looking at the situation long term as past Governments invariably do not, if the health of the carer breaks down, with additional worries about money, then long term the cost to the tax payer will be even higher. It is bad enough that the Homes in London that I know of, are being closed down. The residents are then given one months notice and relatives have to search for another Home and the more disabled the loved one, the more care they need.

    I happen to know of a case in my own family, where a sister has had to search for a third home for her severely disabled loved one. The first home was ideal decent staff and a great deal of good care, then this was closed down, and a 2nd home had to be found, this was found and then this too closed. Each time this lady of 62 is moved it causes major upset and distress, not only to her but her immediate family.

    Property developers are forever on the ‘prowl’ searching for large properties which they can buy at a good price, and then redevelop to make a ‘fat profit’. Why should they care that the disabled have virtually been thrown out of a home which they have been happy in and have been resident for some years.

    Equally, the Social Workers, are now having to work within the new laws imposed by government and then the local Councils. How in heavens name are they supposed to be able to help their clients, when governments (Michael Gove) complain that the standard of Social Workers have to be improved, which is a fair argument. However, at the same time, the enormous pressure on the average Social Worker to be able to help and advise his client is made even more difficult than in the past.

    The few decent Social Workers are coming up to retirement and being replaced by young men and women with their Diplomas and Degrees with little or no experience of how their clients lead their lives.

    Why don’t the Government use these retiring Social Workers with years experience to mentor their younger replacements, I cannot see that this would be a problem to organise, but I can already hear voices saying, well the cost etc. etc.

    I find it totally unacceptable that when cuts are made, it is always the disabled, the mentally ill and the elderly who suffer the most. You never hear about a penalised banker, company director or Members of Parliament, and the like having to make cuts to their incomes or pensions. Then at the same time as these latest cuts are being made within Social Services, the tube workers are on strike for more wages.

    So once again I will use a phrase as follows: It is a reflection of any society as to how we treat the elderly, mentally ill and the disabled, and from where I am sitting in Australia it does not look none to healthy to be in either of these situations and living in the UK.

    If it is any consolation and it is not, here in Australia, the present Government under Tony Abbot are considering the same actions as mentioned above. However, in Australia, the public are more strident in their views and it may be very difficult for Mr. Abbot to push these views forward, she shall have to wait and see what transpires in the Australian Parliament.