Are adult care cuts putting councils at more risk of legal challenges?

Yogi Amin, partner and national head of public law at Irwin Mitchell LLP 

The Care Act 2014 has brought much needed clarity on the statutory obligations for councils to assess and provide social care. Of course, there will always be debate about whether sufficient funding has been allocated from central government to meet these obligations. But councils will have to deliver on their statutory duties or be at real risk of legal challenge. So how should managers and social workers be approaching these duties to minimise the risks of complaint and litigation?

The risk of legal challenge is not inherently a bad thing – it is part of the healthy system of accountability we expect in our society to ensure individual and community rights are respected and protected.

Being aware of the potential for challenge helps in the planning of compliant services and when assessing needs. A legal challenge could come at many different points in the delivery of services. It might come from a charity or voluntary organisation or from individuals themselves.

Consultations

One example that may trigger legal challenge is when a council is consulting on proposed cuts. When councils set their social care budgets, the consultation duties are apparent. The Supreme Court’s recent judgement in Moseley v London Borough of Haringey (2014) shows that a high standard of fairness is required in consultations that propose cuts to benefits or services.

Yogi Amin will be taking part in a discussion at Community Care Live on the funding pressures facing councils and providers and how this impacts on meeting statutory duties. The panel will consider what this means for the future of social services both at grass roots and management levels.
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In particular, service users must be provided with sufficient information about the proposals to make an informed response. Councils have a duty to comply with the Public Sector Equality Duty (PSED) so if cuts to certain social care services are planned, consultations need to spell out honestly what those cuts are and the possible impact of them.

The PSED requires local authorities to understand the impact of a decision to cut on different groups with protected characteristics – such as disability – and their needs.

Other risks

There are five other key risks that commissioners and social workers should be aware of:

1. Ensuring services are in place to reduce needs for care and support: For many councils, a particular challenge in the face of any reduction of funding will be the statutory duty under the Care Act section two, which requires them to ensure services are in place to prevent, delay or reduce needs for care and support. For example, deciding to cut to funding for a day service for brain injured clients, with no clear reasonable alternative, may risk a legal challenge for failure to comply with this duty.
2. Cutting funding for residential or domiciliary care contracts: It could be argued that this would be a failure to comply with the section five Care Act duty to promote the efficient and effective operation of a market in care services.
3. Maintaining a local market: For the same reason, careful attention will be needed when working with clinical commissioning groups (CCGs) to ensure there is a fertile local market with CQC compliant services. There needs to be sufficient bed and carer capacity.
4. Low payment rates for carers: A council or CCG that tries to save money by setting direct payment rates for certain carers at a level that is much lower than, say, supermarket shelf stackers may face problems. They run the risk of undermining an effective market for trained carers and this could lead to a legal challenge.
5. Ensuring assessments are thorough: Cutting corners in assessment of individual care needs could result in complaints and/or legal challenges from individuals who say the council is failing to comply with assessment duties.