Councils mount legal challenge against Care Act funding allocations

Two councils have launched a judicial review against the Department of Health on the grounds that they have not been given enough money to implement the Care Act 2014.

The move by Wokingham and West Berkshire councils has been announced just days before the act’s care and support reforms come into force, on 1 April.

Both councils say that the DH’s promise to fully fund the implementation costs of the act has not been met in relation to them. In a statement published yesterday, West Berkshire said it was mounting a legal challenge on the grounds that the “process which resulted in the inadequate funding, is unlawful”.

Critical thresholds

West Berkshire and Wokingham, along with Northumberland, are the only councils in England operating the highest, ‘critical’ threshold for care under the Fair Access to Care Services (FACS) system of determining eligibility. On 1 April, FACS will be replaced by the new national eligibility threshold brought in by the Care Act, which is supposed to approximate to the lower, ‘substantial’ threshold under FACS.

The DH said it had provided £28m to fund implementation of the new threshold, as part of a £124m allocation for the Care Act under the Better Care Fund. Overall, the government is providing £470m to implement the act in 2015-16.

However, both Wokingham and West Berkshire say their allocation is insufficient to cover the costs of making care available to substantially more people.

Multi-million pound shortfalls

West Berkshire estimated that it would cost the council £5.2m to implement the act in 2015-16, but it had only been given £2.2m by the DH, according to a council paper on its budget for the coming financial year.

It said it has had to fill the gap by dipping into its reserves, which would have to be replenished during the year at cost to local services. In a statement it said: “The Care Act – which comes into force on 1 April – sets out an expectation for West Berkshire council to provide levels of social care to substantially more people than it is currently able to. The government had previously said that it would fully fund the demands the Care Act placed on councils, but has now said that the necessary money for West Berkshire will not be forthcoming.”

Unfair disadvantage

A Wokingham council paper in February on its medium-term financial plan said the costs of the new threshold could run into the millions of pounds each year. It was forecasting that the threshold would cost £200,000 in 2015-16, £1m in 2016-17 and £1.5m in 2017-18.

“The Department of Health’s funding announcement has left a shortfall and put the borough council in a difficult situation,” said Wokingham’s executive member for health and wellbeing, Julian McGhee Sumner. “Reluctantly, the council feels compelled to take legal action through judicial review because we believe the department’s decision unfairly disadvantages the Wokingham Borough and its vulnerable residents.”

How the government determined eligibility funding

The government’s view – set out in its impact assessment on the Care Act’s reforms – is that the new threshold will result in approximately 4,000 more people becoming eligibility for care. But crucially it found that these people will be spread across the country, not concentrated in the three authorities with ‘critical’ thresholds. This means the DH has not provided disproportionately more funding to West Berkshire, Wokingham and Northumberland to implement the threshold.

Based on analysis conducted by the Personal Social Services Research Unit at the London School of Economics, the DH concluded that the three critical authorities had a bigger proportion of their populations with ‘critical’ needs than other councils. This implied that they were meeting the needs of people who would be deemed to have ‘substantial’ or lower needs in other authorities.

This has been backed up by Northumberland council, which has said that the new eligibility criteria under the act “closely match those in Northumberland” and was, if anything more restrictive than that operated by the authority.

The DH also found no evidence that the three authorities were spending less than similar councils on social care for older people per head of population, implying that their critical thresholds were not leading to more restrictive access to care.

Confidence high amid funding concerns

A stocktake by the Local Government Association in January and February found that all councils but one have declared themselves very or fairly confident that they will be able to implement the act, but over a quarter are not confident that they will have sufficient funding to do so.

In its response to the stocktake, Wokingham said that it was “fairly confident” in its ability to implement the act in 2015-16, but “not at all confident” that it would have sufficient funds to do so. It said its biggest risk for implementation was the underfunding of the national eligibility criteria.