Council defeats challenge to 'critical needs only' adult social care policy

A local authority has fended off a legal challenge to its policy of only providing access to care services to people with needs classed as ‘critical’.

The Court of Appeal earlier this month refused a group of disabled claimants permission to bring judicial review proceedings against West Berkshire Council.

News of the ruling comes as Newcastle City Council revealed that it may have to move to a ‘critical-only’ policy in 2016.

In the Court of Appeal, Lord Justice Davis ruled that West Berkshire had acted lawfully, rejecting claims that the council had failed to balance matters properly.

Lord Justice Davis also concluded that when reviewing its eligibility criteria, West Berkshire had acted reasonably and on the basis of an explanation that the policy was not resulting in highly restrictive services. 

West Berkshire Executive Councillor Joe Mooney said: "I'm pleased the court recognised our position and took account of our findings that we are not highly restrictive when it comes to providing care. That is how it should be.

"It is regrettable we had to spend a lot of money defending this case, when that money could have been put to better use. It is also worth noting that, prior to the claimants' lawyer pressing for a court review, we had begun one of our regular reviews of care criteria but had to put that on hold. Now this hearing has concluded, we can carry on with this work which aims to ensure we provide the best possible care within the resources at our disposal. I hope local residents will be reassured by that."

Alex Rook, from the public law team at Irwin Mitchell, said: “West Berkshire Council is currently one of only three out of the 152 councils in the country with this kind of restrictive policy in place. We are disappointed that the court concluded that it could not be deemed so unreasonable that it would strike it down
 
“Our clients and national charities including Sense and Mencap, who supported the case, strongly believe this is policy is extremely unfair and find it particularly difficult in the current economic climate to accept that West Berkshire will not, for example, provide any support to someone assessed as being ‘unable to do many aspects of their personal care causing significant risk of danger or harm to themselves or others’. 
 
“Many people have, are and will be affected by this and it is a huge shame that they face such a postcode lottery regarding their personal care. Quite simply, they could move almost anywhere else in the country and receive more care under a less restrictive policy.”

In July, James Dingemans QC, sitting as a Deputy High Court Judge, had refused the claimants permission on a renewed oral application. The judge concluded that the claim that West Berkshire’s policy was irrational in the Wednesbury sense was unarguable.

Northumberland and Wokingham councils are understood to be the only local authorities, alongside West Berkshire, to operate a 'critical-only' policy at this time.

However, Newcastle City Council this week said it may have to move to such an approach in 2016. It outlined proposals to make overall budget cuts of £90m over the next three years. In relation to adult care, the authority is proposing to:

  • Invest further in preventative services, underpinned by the use of assistive technology;
  • Develop a new co-operative model of service delivery in partnership with local communities;
  • Work more closely with other partners through Newcastle’s Wellbeing for Life Board, particularly the NHS;
  • Consult on changes to fees and charges, “with a view to securing a fair balance between costs met by the council, and those met by the individuals receiving support and who can afford to contribute”.

The city council said the reforms in this proposed budget would help maintain an effective social care system through the next two years, supporting people with substantial and critical needs.

“However, without additional resources from central government, and national reform of the social care system, there is a limit to the steps that the city can take to manage cost pressures,” it added.

“By 2016 it may therefore be necessary for Newcastle, alongside many other councils, to consider greater restrictions on access to council-supported care, by limiting eligibility to those vulnerable people with critical needs only.”

The report admitted that this was “a significant step” that could leave people with substantial needs without necessary support. The council said it would continue to lobby national government and explore local solutions to avoid this situation arising.

Philip Hoult