Council defeats High Court challenge over changes to adult care eligibility threshold

Lancashire County Council has successfully fought off a judicial review challenge over proposed changes to its eligibility threshold for access to social care services and to how the authority charges for this help.

In JG & Anor v Lancashire County Council [2011] EWHC 2295, the claimants were two disabled women, aged 65 and 73.

Backed by national charities SENSE and the National Autistic Society as well as by local organisation Disability Equality North West, they argued that:

  • In approving its budget for 2011/12 to 2013/14 on 17 February this year, the full council had failed in its duty under s.49A of the Disability Discrimination Act 1995 to have “due regard” to the need to take steps to promote equality of opportunity for disabled people and the need to take account of disabled persons’ disabilities, even where that involved treating such persons more favourably than others
  • The decision by Lancashire’s Cabinet Member for Adult and Community Services on 31 March 2011 to approve two particular policies – “service policy proposals” contained in the budget – meant that the council had again failed its “due regard” duty under s.49A.

The first policy saw Lancashire raise the eligibility threshold for adults accessing social care services under the Fair Access to Care Services (FACS) Scheme statutory guidance. This meant that going forwards services would only be provided if a person’s needs were categorised as “substantial” or “critical” under the scheme rather than “moderate”.

The second policy changed how Lancashire charged for social care services.

The decisions by the council were taken against the backdrop of having to reduce spending by 26% over the next four years. The reduction needed for 2011/12 alone was £71.6m.

In the High Court Mr Justice Kenneth Parker dismissed the claims. The judge said the real grievance of the claimants was “that, while [Lancashire] may have been conscious of its duty to have due regard to the relevant factors, it did not, at the time that the initial budget decision was taken, carry out a detailed assessment of the likely impact of the budget decision on the affected users of the relevant services.”

But he said – as the evidence showed – it was clear to those involved in approving the budget that disabled people would be adversely affected by budget reductions to adult social services. The potential impact of the policy proposals on those affected had been specifically identified for further investigation, the judge added, and as part of that investigation there had been a series of consultations.

Mr Justice Kenneth Parker also said that the approval given on 17 February did not constitute a final decision about what Lancashire’s policies would be “or even about what sum of money would, in fact, be saved under each of the service proposals”.

He went on: “On the contrary, it was obvious to the council’s members that the individual proposals, including the two policies about which the claimants complain, would be implemented only after due regard had been paid to the need to promote equality of opportunity and to take steps to take account of disabled persons’ disabilities.”

As an example, the judge pointed out that several potential options were consulted on in relation to the charging policy, after which an equalities impact assessment was conducted.

Mr Justice Kenneth Parker said: “What, in fact, has happened in this case is that the decision-maker has taken a preliminary decision in relation to its budget, fully aware that the implementation of proposed policies would be likely to have an impact on the affected users, in particular, disabled persons, but not committing itself to the implementation of specific policies within the budget framework until it had carried out a full and detailed assessment of the likely impact.”

The judge said there was nothing wrong in principle with such an approach and nothing inconsistent with the duties under the DDA. “I reject entirely, in the light of the detailed evidence relied upon by the council, the hypothesis that the procedure was a cosmetic exercise, in which the council was already committed to the implementation of specific policies at the time the budget framework was set, and was doing no more than going through the motions of setting out the consequences of a pre-determined course,” he said.

“The economic reality was that to meet imperative needs of reducing expenditure it would be extraordinarily difficult to avoid an adverse effect on adult social care. But there remained flexibility as to how any such effect on disabled persons could be minimised and mitigated, and I am satisfied that the council kept an open mind as to the precise policies that would be implemented.”

The judge therefore concluded that it was “sensible, and lawful”, for Lancashire first to formulate its budget proposals and then – at the time of developing the policies under challenge – to consider the specific impact of proposed policies that might be implemented within the budgetary framework.

In relation to the FACS policy and the Charging Policy, Mr Justice Kenneth Parker said there was “simply no foundation” for the claimants’ allegation that the assessment of impact carried out by Lancashire was inadequate.

“By the time that the decision had been taken to change the FACS criteria for eligibility and to amend the charging policy the defendant had carried out a detailed and comprehensive analysis of the probable impact on service users, in particular, disabled persons both those affected by the change in eligibility criteria and those affected by the charging policy,” he said.

The judge added that Lancashire had considered how the probable adverse affects might be mitigated. This included reassessing all services users currently in the ‘moderate’ band. There was an expectation that this would see a relatively large proportion of these services users assessed into a higher band.

Other mitigating steps included providing access to the council’s Help Direct signposting service and its Telecare Services.

The claimants had argued that the mitigating steps were inadequate. However, Mr Justice Kenneth Parker said the challenge was not a Wednesbury challenge to the reasonableness of the council’s budget or the policies it had adopted, but rather that it had failed to have due regard under the DDA.

“Whether or not the mitigating steps were adequate was a matter for the council to determine,” the judge said. “The fact that the council did direct its mind towards the question of what mitigating steps could be taken so as to lessen the impact of the relevant policies on affected users demonstrates that the council did in fact have due regard to the matters specified in the DDA.”

The judge therefore concluded that Lancashire had complied with its duties under s.49A of the DDA.

Lancashire County Council instructed Sam Grodzinski QC and Janet Kentridge of Matrix Chambers.

Philip Hoult