Social care eligibility

Government funding to councils has fallen £3.5billion in real terms or 11.8 per cent since 2010/11. The 2010 emergency budget cut £805million to councils in 2010/11 and the 2010 Spending Review announced a further 26 per cent reduction by 2014/15. This is in addition to being asked to freeze council tax.

According to a report released by the Audit Commission in November, local authorities have attempted to preserve key priorities such as social care however the Audit Commission reported spending on adult services has fallen by an average of 2.5 per cent and warned that trying to cut smaller services won’t deliver the level of saving local authorities are required to make. Most councils’ reserves have already been ear marked for future liabilities. Adult social care accounts for 40 per cent of single tier and county council spending. The report recommends that, despite increasing demand, councils may need to identify greater savings in areas such as adult and children’s social care.

Councils have strived to avoid denigration of services through reduced administration costs achieved by staff cuts, shared services and outsourcing. Nevertheless many are already reducing the frequency and quantity of services and reviewing charging policies. A significant number have restricted eligibility criteria and it is predicted that number will grow.

Increasing cuts have been mirrored by a significant rise in legal challenges to social care policies. Judicial and media attention has highlighted the tension between dignity for vulnerable people in the public conscience and economic reality. The well publicised Supreme Court case McDonald v Royal London Borough of Kensington and Chelsea earlier this year illustrated the paradigm. What we regard as necessary in a civil society is affected by resources. This concept was of course recognised by the House of Lords in 1996 R v Gloucestershire CC and others ex p Barry.

The Fair Access to Care Services (FACS) framework was introduced by the Department of Health in 2003 statutory guidance. All councils set their eligibility criteria for adult social care annually according to prescribed bands of need; low, moderate, substantial and critical. In deciding where to set the eligibility threshold, council resources, local expectations and costs, local agreements with other agencies and other local and national factors are to be taken into account in accordance with the guidance. A recent survey suggests that the number of local authorities providing services to those with low or moderate needs has halved in the last five years.

The statutory guidance was reissued in 2010 and reflects central government expectations that councils will provide services not only to those in immediate need but also preventative care. Universal services, available even to those that do not meet eligibility criteria, is also a feature of the government’s Putting People First policy. Those objectives are increasingly difficult to achieve.

In May this year, the High Court found that Birmingham City Council had acted unlawfully when deciding to restrict eligibility for care to critical needs only. In September, Lancashire County Council defended the decision to move their eligibility threshold from moderate to substantial. In November, the Isle of Wight Council failed to defend its decision to meet only critical and some limited substantial needs.

In all three cases the authorities were attacked for failure to comply with public sector equality duties in Section 49 of the Disability Discrimination Act 1995. The equivalent provision is now found in Section 149 of the Equality Act 2010. Councils are required to have due regard to three aims; elimination of discriminatory conduct, advancement of equality of opportunity and fostering of good relations.
Councils must consciously address the three aims of the general equality duty as part of any decision making process. General awareness of the duty will not suffice, particularly where significant changes in policy are proposed.

The ability to successfully defend challenges will rest on evidence of a detailed analysis of the impact of the proposed policy. Officers must provide members with rigorous and accurate advice. A consultation exercise is only effective if proposals are clearly explained and directed to the relevant audience. Impact assessments ought to identify the groups and numbers of people affected, the severity of and any means of mitigating or avoiding adverse consequences as well as any cost savings.

While the Audit Commission reports most local authorities are coping so far, some 10 per cent are presently at risk of not balancing their budgets and there are tougher times ahead. It is local authorities that have been entrusted to make difficult decisions in order to meet the needs of their local populations. However, what the case law shows is that is that where a council has not had proper regard to their equality duties the courts are swift to intervene, even in a tough economic climate.

Sallie Harrington is an Associate at Weightmans LLP
Sallie.harrington@weightmans.com