How can councils make economies in their social services provision without falling foul of the law? Nicola Williams outlines how local authorities can stay out of trouble.

The conundrum: maintaining levels of services where social services’ budgets are in the front line of budget cuts.

Where could local authority budgets cuts ultimately lead? We have been deluged with stories of budget cuts, the possible consequences of free personal care and the consequences for our already under-resourced social services departments. If social services take the brunt of cuts to local authority budgets, what is the bottom line in terms of local authorities' responsibilities?

Fair Access to Care - the new Guidance on eligibility criteria

On 25 February the Department of Health published Prioritising Need in the context of 'Putting People First': A whole system approach to eligibility for social care: Guidance on Eligibility for Social Care, England 2010 (the "Guidance").  That document makes specific reference to the earlier CSCI¹ report Cutting the Cake Fairly: CSCI review of Eligibility Criteria for Social Care²,  which found that short term gains in funding for local authorities as a result of raising eligibility criteria were followed by a longer term rise in the numbers of people eligible for social care services. The Guidance warns against authorities raising eligibility criteria and suggests instead that authorities should "... consider adopting a strong preventative approach to help avoid rising levels of need and cost at a later stage".  The Guidance suggests practical methodologies for embedding preventative strategies across the whole of an authority, working in partnership with other local agencies. 

The Guidance also recognises that while authorities can review their eligibility criteria in line with their usual budget cycles, reviews can be brought forward "if there are major or unexpected changes, including those with significant resource implications".  Authorities are repeatedly warned that raising the threshold of the eligibility criteria without a parallel investment in preventative services may lead to increasing demand for services in the longer term. 

Duty to meet eligible needs

The Guidance goes on to provide detailed information on the assessment process for individuals who appear to be in need of services.  Once an individual's needs have been assessed, the local authority cannot take decisions about whether to meet eligible needs simply on the basis of resources available (R v Gloucestershire County Council, ex parte Mahfood³).  The Guidance reinforces the finding in the Mahfood case, namely that where eligible needs have been assessed, a local authority is under a duty to meet those needs.  There is also a requirement that individuals with the same or similar needs should receive similar packages of care.  While it highlights that there may be flexibility around how individuals' needs can be met, the Guidance does not have a message for local authorities as to how to square the circle, that is - static or increasing needs of the local population, particularly with the needs of an aging "baby boomer" population around the corner, and the significant cuts to public services which seem inevitable.

The judgment of what was then the House of Lords in the case of R v Gloucestershire County Council ex parte Barry⁴ provided a possible answer to this some time ago.  It was deemed permissible to increase the levels of an authority’s eligibility criteria, provided that individuals were then properly reassessed for care provision against the new eligibility criteria.  That approach has been criticised and distinguished in subsequent cases⁵, and it is important to bear in mind that ex parte Barry was decided prior to the Human Rights Act coming into force.

The Human Rights Act 1998

Local authorities are increasingly aware of the potential for the rights enshrined into law by the Human Rights Act 1998 (the "HRA") to impact upon their policies and practices.  The HRA gave direct effect in British Courts to certain Articles of the European Convention of Human Rights as set out Schedule 1 to the HRA.

Article 2 and Article 3 of the European Convention of Human Rights

Those Articles of greatest relevance to social services departments are Article 2, the Right to Life, and Article 3, the Prohibition of Torture.

Article 2 is an absolute right, and places an obligation on all bodies fulfilling "functions of a public nature" (as set out in section 6(3) of the HRA) to protect the right to life. This has previously been raised in, for example, cases challenging the decision of a local authority to close a care home (R (Wilson) v Coventry City Council⁶), where it was unsuccessfully argued that a potential increase in mortality of care home residents, who were forced to move when their current home closed, amounted to a breach of article 2. 

Article 3, as well as prohibiting torture, also protects against inhuman or degrading treatment or punishment.  It too is an absolute right, not qualified by reference to the conflicting needs of a democratic society, although it is subject to a minimum threshold test.  By virtue of Article 3, local authorities are under a positive obligation to take reasonable measures to prevent the violation of individuals' rights under Article 3.  The case of Z and Others v UK⁷ (which was heard before the European Court of Human Rights in Strasbourg), found that the local authority's failure to protect a family of four children who were living in squalid conditions, and who were known to the authority over a four and a half year period, was in breach of its duties under Article 3. 

The case of  Z and Others also found that there was a failure to provide an adequate remedy for the breach of the children's rights, which was itself a breach of Article 13. An application for damages had been heard prior to the HRA coming into force, and had been struck out by the Court.  Claims for breaches of the HRA can now be brought through the domestic Courts and the remedy available for such claims is damages. 

Failure to provide services

The capacity to bring claims under the HRA for service failures is limited   - for example, Article 3 was raised again in the case of R (on the application of Haggerty and others) v St Helens Council⁸, in the context of the local authority's decision not to renew a contract with a nursing home which was likely to result in the closure of the home.  The claim alleged breaches of Articles 2, 3 and 8 (right to private and family life),  which failed because it was found that the disruption which would be caused to the residents of the care home, all of whom had senile dementia, would not reach a sufficiently high threshold to trigger the protection of any of these three rights

Although successful claims for damages under the HRA are rare, the setting of eligibility criteria may disguise failures to meet eligible needs and local authorities need to be conscious that even where needs are assessed as falling below the eligibility criteria for a particular authority, a claim under Article 3 may still be available if the circumstances are sufficiently extreme.  The legal fees incurred and any damages payouts which do ensue are likely to have an incremental effect on the social services budget crisis.

Postscript - the limits of the care which local authorities can provide

Despite the concern to meet their obligations under the HRA, local authorities will also want to ensure the care they are providing does not go beyond the limits of what an authority can lawfully provide.  

Local Authority lawyers will doubtless be aware of the judgments in the Coughlan⁹ and Grogan¹⁰ cases which defined the limits of the care which local authorities can lawfully provide.  Despite the terms of the judgments in these cases, however, and the publicity around individuals’ attempts to reclaim funds expended on personal care in the past, we are aware of significant disputes between local authorities and the NHS as to the outcomes of assessments under The National Framework for NHS-funded continuing care and NHS- funded nursing care¹¹.

These types of “costs shunting” issues, where the funding responsibility for whole groups of individuals with a high level of care requirements can end up in judicial review proceedings before the High Court, are likely to increase as local authorities become less willing to reach a compromise which will impact further on their social services budgets. Similarly, we expect to see a rise in claims in restitution, seeking “back-payments” where the Courts decide that a party does not have legal responsibility for care it has been funding in the past.

Nicola Williams is a partner in Eversheds LLP’s Litigation and Dispute Resolution Group

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This briefing is correct as at 5 March 2010.  It is intended as general guidance and is not a substitute for detailed advice in specific circumstances.

Footnotes:

¹ The Care Quality Commission took over CSCI’s responsibilities from April 2009

² which was published in October 2008

³ 1997 1 CCLR 7.  See also paragraph 124, footnote 60 of the Guidance which refers to this case.

⁴ [1996] 4 All ER 421

⁵ See, for example, R v Wigan MBC ex parte Tammadge (1998) 1CCLR 581

⁶ [2008] EWHC 2300

⁷ (2001) 10 BHRC 384

⁸ [2003] EWHC 803

⁹ R v North and East Devon Health Authority ex parte Coughlan [2000] WLR 622

¹⁰ R (Grogan) v Bexley NHS Care Trust and others [2006] EWHC 44 (Admin)

¹¹ July 2009