Last week it was revealed a severely disabled man’s legal battle against a 40% cut to his personal budget had ended in failure.
The High Court dismissed Luke Davey’s judicial review against Oxfordshire council. The judge acknowledged the cut could impose “unwelcome” limits on Davey’s life, but he ruled the council had acted lawfully and met its Care Act duties.
The case is the first High Court challenge to test a council’s compliance with the Care Act’s wellbeing principle. But the underlying issue of care package cuts is far from unusual as councils struggle to plug a social care funding gap sector leaders say will hit £2.6bn by 2020.
After seven successive years of austerity, social services directors warn there are few “efficiencies” left. Care packages, particularly intensive community support, are now being tightly scrutinised. The pressure to find savings, legal experts say, has left councils pursuing “legally risky” policies that push the limits of the Care Act.
‘Costs and caps’
Among the most controversial are policies to review expensive home care packages against the equivalent cost of supporting someone in a care home. If a review finds council funding is insufficient to maintain a person’s community support, they are given the option of paying a top-up fee or moving to residential care.
North Somerset council approved a ‘fair care’ policy along these lines last month. The authority estimates the move will save £700,000 over the next four years but an impact assessment acknowledges the plan could also see more disabled people move into care homes.
Bedford council brought in a similar policy last year, also called ‘fair care’. The council denied the policy was driven by the desire to save money. Yet cabinet papers state it was introduced because of concerns about the ability to fund increasing numbers of complex and expensive home care packages, which were “significantly exceeding” the cost of care home placements.
The wording of these policies is particularly significant. Section 10.27 of the Care Act guidance states that a council should not “set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes”. However, it does allow local authorities to “reasonably consider” their own finances when meeting needs and take decisions on a case-by-case basis.
The ‘fair care’ policies walk a tightrope between the two. Bedford’s website clearly describes its policy as placing a “cap” on home care packages, whereas North Somerset stresses its policy is only guidance and not a “cap or limit”. Both include the caveat that when the policy is applied, decisions about care will still be made according to “individual circumstances”.
Disability campaigners have also questioned what an approach to care package savings – that could see more disabled people move to care homes – means for the right to independent living. The Care Act guidance, this time section 1.19, states that “supporting people to live as independently as possible, for as long as possible” is a guiding principle of the legislation.
Liz Sayce, chief executive of Disability Rights UK, said: “Disabled people campaigned hard for independent living and disabled people’s organisations have worked with social services departments to make it a reality in many areas. We have already seen significant cuts to disabled people’s personal budgets. Further cuts will jeopardise independent living.”
A third issue is whether the policies will actually deliver for councils or service users. Medway council abandoned plans to introduce a similar reviews policy earlier this year. Explaining the U-turn, the council said its consultation revealed service users feared they’d be forced into care homes as the cheapest option. Medway’s own research, meanwhile, found that other councils who had implemented the approach hadn’t generated the anticipated savings.
Whether they pursue these policies or not, the pressures on councils to find more savings from care packages will continue. Authorities have worked hard to protect adult social care from the worst of the cuts, but the challenge of supporting an ageing population with less central government funding remains.
Margaret Willcox, president elect of the Association of Directors of Adult Social Services, sums up the dilemma facing councils.
“Our ambition is to try and keep people in their own homes as much as possible, if that’s not the case then in a home in the community that’s as near to independent living as possible. But some people, depending on their needs, will not be able to manage at home.
“The money’s getting very tight. Councils will work their way through obvious ways of making the money go further – they will look at efficiencies first, then alternatives to what they do, but then ultimately they will have to look at what is a fair amount for that person’s expectation.
“That’s where it gets extremely difficult; I don’t think it’s going to get any easier.”