Claimants win High Court challenge over Birmingham adult care cuts

May 20, 2011

Birmingham City Council failed to ask the right questions in relation to disability equality duties and conducted a flawed consultation when it decided that it would no longer pay for any adult care needs that were not ‘critical’, a High Court judge has ruled.

Responding to the ruling, the local authority warned that there was “no new money” and it would have to review other parts of its ‘New Offer on Adult Care' as a result.

Birmingham’s reaction followed the publication of Mr Justice Walker’s ruling in full yesterday. The High Court judge had issued an interim judgment in April upholding the challenge by the families of four disabled adults, who claimed that Birmingham had failed to have ‘due regard’ to the disability equality duty pursuant to s. 49A of the Disability Discrimination Act 1995.

The council had planned to bring in the proposed changes from 1 April 2011. It will now have to make a fresh decision.

In W, R (on the application of) v Birmingham City Council [2011] EWHC 1147 (Admin), Mr Justice Walker ruled that the original decision was unlawful. He found that:

He accepted that the council had to take a decision about the extent to which it would analyse in detail the likely impact on individuals of the options which it had identified. But that had to be seen in the context of the work Birmingham had done as part of its transformation programme. On any view, the dramatic concerns identified in a report of the council's assistant director for equalities and human resources in November 2010 on the possible impact of this and other cuts in services were a "highly significant feature of that context". The claimants’ analysis of all that was done by the council in the period from November 2010 (when the plans were first unveiled) “undeniably” showed that the council did not in any real sense refine and focus what in November 2010 was necessarily a ‘high level and generalised’ description of the likely impact of moving to ‘critical only’. “It is difficult to see how, in the circumstances of the present case, ‘due regard’ could be paid to the matters identified in s. 49A without some attempt at assessment of the practical impact on those whose needs in a particular respect fell into the ‘substantial’ band but not into the ‘critical’ band.”
The decision to consult ‘on broad options’ required consideration of a subsidiary question whether to go beyond generalities in assessing the likely impact of the proposed course upon individuals with ‘substantial’ needs. “At the very least it seems to me that in order to pay ‘due regard’ the council when deciding to consult ‘on broad options’ needed to consider whether its answer to the subsidiary question was consistent with its duty under s. 49A. The council submitted to the judge that this would have been impossible, but Mr Justice Walker pointed out that this was not a feature of the analysis put to members.
He accepted that throughout the process Birmingham was giving consideration on how to address the needs of the disabled. “In that sense its decisions taken in relation to adult social care were decisions which were relevant to its performance of the s. 49A duty. That is not the same thing, however, as doing what s. 49A seeks to ensure: namely to consider the impact of a proposed decision and ask whether a decision with that potential impact would be consistent with the need to pay due regard to the principles of disability equality.”
“Conspicuously absent” from the material before the Cabinet was any express statement that Cabinet must consider whether s. 49A required it to take the course of recommending to the full council that further spending resources be allocated to the Directorate, in particular because of the potential severity of the impact of the proposed move to ‘critical only’.
The evidence as a whole made clear that there was a failure by the Council on 1 March 2011 and Cabinet on 14 March 2011 – meetings at which the budget was set and the eligibility policy was changed – to focus on the questions which were required to be asked. The relevant propositions in this respect were: ‘due regard’ requires analysis of the relevant material with the specific statutory considerations in mind; general awareness of the duty does not amount to the necessary due regard, being a ‘substantial rigorous and open-minded approach’; in a case where the decisions may affect large numbers of vulnerable people, many of whom fall within one or more of the protected groups, the due regard necessary is very high; in particular, decision-makers need rigorous and accurate advice and analysis from officers, not ‘Panglossian’ statements of what officers think members want to hear. “The failure to ask the right questions must, to my mind, lead to the conclusion that the decisions of 1 March and 14 March 2011 so far as concerns the New Offer for Adult Social Care were unlawful and cannot stand”.
Even if members were able to form some sort of opinion as to the broad impact of the move to ‘critical only’, there was not in the material prepared for the meetings any assessment of the extent to which such mitigating factors as were mentioned would or would not reduce the potential severity of the proposed move to ‘critical only’. There were passages in the material about complaints but the reply did not meet those complaints. These defects were not remedied in another report either. In the Equality Impact Needs Assessments, neither the analysis nor the suggested action plans attempted to examine what the actual impact of the move to ‘critical only’ would be or how it would be affected by mitigating measures. “Had members appreciated the need to consider the right questions, they would not have had the wherewithal to answer it.”
Though not a determinative feature, the council acknowledged that financial constraints played a part in the proposal to move to ‘critical only’. “That fact of itself involves no breach of s. 49A: authorities must seek value for money and must balance the interests of local taxpayers with those of services recipients.” However, the stance of the council in the proceedings involved an assertion that the position already reached in Birmingham meant that there was no more room for manoeuvre – it might have been that other authorities could cope for a while longer by making the sort of savings the council had already made, but the council could not. “It may be that this belief underlay council officers’ approach to the decisions to be taken on 1 and 14 March,” the judge said. “The material prepared for consideration on those dates did not consider the possibility that this belief might not be right.”
There was a failure in the material prepared for consideration on 1 and 14 March to address the questions which arose when considering whether the impact on the disabled of the move to ‘critical only’ was so serious that an alternative which was not so draconian should be identified and funded to the extent necessary by savings elsewhere. The judge said this was not meant as a personal criticism of the council’s officers, who were working under pressure of time and resources. The council’s strategic director for adults and communities had said that for the officers, disability discrimination was not, discretely, a major feature, because virtually the whole of their work was directed towards combating its effects and seeking to advance those who suffer from it. “The combination of these factors, I believe, may well have led them to lose sight of what s. 49A required in the context of something as potentially devastating as a move to ‘critical only’,” the judge said
His conclusion as to the failure to comply with s. 49A inevitably carried with it a conclusion that the consultation was inadequate. “Just as the decision-making process failed to address the right questions, the same is true of the consultation process.” There were other “troubling” features of the consultation process, including that it failed to make clear that a substantial part of the £33.2m saving was nothing to do with the move to ‘critical only’ and that the wording of the consultation left considerable scope for confusion. “As regards the latter, it seems to me that there are very substantial grounds for concern that consultees did not have the opportunity to assert that the true sum involved in retaining ‘substantial’ as the criterion for eligibility was a sum which could be properly found by making savings elsewhere.” Even if the council had asked itself the right questions the judge would have concluded that the consultation process had not complied with what the law requires.

Commenting on the full ruling, Peter Hay, strategic director of adults and communities at Birmingham, said the judgment had given the council greater clarity with regard to the Disability Discrimination Act.

He added that the local authority would now re-run the consultation and make decisions about adult social care “consistent with the need to analyse the potential impact on disabled people and our compliance with the equality principles set out in law”.

Hay confirmed that, in the meantime, people would continue to receive services to meet needs that have been assessed as substantial and critical. A report will be brought back to cabinet members to enable them to decide how the council will meet adult social care needs in the future.

But he warned that the original dilemma between reducing services in different areas remained. “There is no new money as a result of the judgment and hard choices about meeting growing needs with fewer resources will have to be made by local authorities.”

Birmingham’s strategic director continued: “As this judgment clearly acknowledges, councils can only control spending by setting eligibility criteria. We will now have to review our criteria and sadly other aspects of our new offer will have to be withdrawn so that we consider all resources that are available to the council. We are particularly saddened that our agreement to spend £10m in supporting people with substantial needs in community and voluntary services will cease whilst we review our options.”

Hay added that there were broader issues for all councils which would need to be considered as a result of the judgment. “On the DDA and impact assessment, we recognise the need both for further action and to build broader understanding of the impact of the choices we will make across the council, and particularly with people who use services and their carers,” he said.

Polly Sweeney, a solicitor at Irwin Mitchell, which acted for one of the claimants, hailed the ruling as a “hugely important victory not just for the four individuals involved in this case, but also for the thousands of other people affected across Birmingham”.

She added: “These people and their families rely heavily on this care and it would have represented a huge backward step if the funding was removed.

“This case has national significance too. Birmingham City Council is the UK’s largest local authority and it’s very likely that this outcome will set a precedent for other cases in other parts of the UK where councils may be targeting vulnerable groups through cost-cutting drives.”

Philip Hoult