Council cuts proposals ‘fly in face of Care Act’ and risk legal challenge

Funding pressures mean councils are proposing cuts that “fly in the face of the Care Act” and are potentially unlawful, campaigners and legal experts have told Community Care.

The Care and Support Alliance (CSA), which represents more than 75 charities, warned cuts are reducing local authorities’ ability to meet their statutory duties. The group’s analysis of savings plans from 15 councils revealed proposals to cut staff, freeze recruitment and reduce assessments in 2016-17.

Law firm Irwin Mitchell said it was aware of cases where councils were failing to meet key Care Act duties. In a seperate development, a user-group in Norfolk has written to health secretary Jeremy Hunt urging him to order a CQC investigation into the impact of cuts at the council. The group says the Care Act is being breached, but the council disputes this.

Sue Brown, vice chair of the CSA, pointed to savings proposals from Merton and Cumbria councils as two examples where legal duties could be at risk of being breached if plans went ahead.

Merton proposed reductions in staff which the council acknowledged would reduce its capacity to carry out assessments and reviews, undertake safeguarding activities and fulfil its Deprivation of Liberty Safeguards (DoLS) duties.

Cumbria council’s draft commissioning strategy proposed limiting assessments to people who were “likely to be eligible for services”.

The Care Act statutory guidance states that “local authorities must undertake an assessment for any adult with an appearance of need for care and support, regardless of whether or not the local authority thinks the individual has eligible needs or of their financial situation”. This reflects the duty to assess in section 9 of the act.

Cumbria told Community Care the proposal has since been reworded for a final commissioning strategy. The revised version said: “the aim is to ensure that we only assess people who appear that they may have a need of services.”

Care Act compliance?

Brown said the strain on councils meant they were now proposing changes that “fly completely in the face of the Care Act guidance”, adding: “It will affect the most vulnerable people and it is now very difficult to challenge this kind of thing. It’s hard to get legal aid but, if you also don’t understand what you should be getting, then you don’t challenge it.”

The CSA’s findings were submitted to an inquiry by the House of Commons health select committee into the impact of the comprehensive spending review on health and social care services.

The spending review cut central government funding for councils over the next five years but gave local authorities powers to raise money for social services by raising council tax by an additional 2% a year under a ‘social care precept’. The Local Government Association said there would be a shortfall of more than £2.9bn by 2020 despite the precept.

Social care leaders said councils were working hard to protect frontline care but acknowledged many services would be at “great risk” over the next two years due to financial pressures.

Areas of legal risk

Legal experts told Community Care councils had to “tread very carefully” when making social care cuts.

Caroline Barrett, a solicitor at Irwin Mitchell, said: “Their duties under the Care Act are not optional and they must comply with them. With cuts to the amount of provision on offer in many areas, local authorities run the risk of being challenged in the courts.”

Barrett said Irwin Mitchell was aware of cases where councils were not providing enough care support to meet the assessed eligible needs of disabled adults, a situation she warned was open to legal challenge given section 18 of the Care Act requires a local authority to meet a disabled adult’s eligible needs, so long as other conditions are met.

Another legal risk for councils lay in moves to close day centres or remove care placement options, she added. These decisions could breach a local authority’s duty, under section 5 of the Care Act, to promote the efficient and effective operation of a market in care services locally, she said.

User-group escalates complaint

The warning from the CSA came as a user-led group in Norfolk escalated its complaint about the impact of local authority cuts on their service users.

Equal Lives has written to health secretary Jeremy Hunt urging him to order the Care Quality Commission to investigate Norfolk Council’s adult social care department. The letter lists eight examples of budgetary decisions taken by the council that the group claims ‘contravene the Care Act and statutory guidance’. These include:

• Using reviews to make reductions to, or withdraw, social care support in a way that is unrelated to changes in needs or circumstances.
• Removing wellbeing payments from personal budgets and offering no alternatives.
• Raising the eligibility criteria of social care without consulting service users, which means some people with disabilities who were previously receiving services are no longer doing so.

The council “disputes any suggestion” of unlawful care but said it took the issues raised by Equal Lives “extremely seriously” and would review decision-making.

Responding to the CSA warning on spending cuts, Ray James, president of the Association of Directors of Adult Social Services, said: “The Care and Support Alliance’s submission to the Health Select Committee reflects many of the key messages both in our own submission, and in the evidence already gathered by the Committee.

“We joined many colleagues in the Care Sector, including the CSA and NHS Confederation, to make a joint submission to the Spending Review, highlighting our shared concerns.

“Although the Treasury recognised the untenable position of social care budgets in the Spending Review, the funding made available was both too little, and too late.

“Councils are working hard to protect the quantity and quality of services for older and disabled people, but directors of adult social services are clear: many services are at great risk over the next two years due to increasing demand, the welcome introduction of the National Living Wage and the need to find further savings.”

Additional reporting by Julie Griffiths