A Critical Judgement

Less than a week after this story about local authorities cutting social care services, Birmingham Council's plan to raise eligibility thresholds to critical has been overturned after a judge ruled it unlawful.

The ruling declared that Birmingham’s proposal to raise criteria from substantial was unlawful because the council had failed to pay due regard to the impact on disabled people during the decision-making process, contravening Section 49A the Disability Discrimination Act.

Section 49A details the six things that public authorities are supposed to do in carrying out the act: eliminate unlawful discrimination, eliminate harassment related to disabilities, promote equal opportunity for disabled persons, create an account of a disabled person's treatment compared to others in society, create a positive attitude towards the disabled, and encourage the disabled to participate in public life.

The families of four disabled adults challenged the local authority’s decision that any needs that were not “critical” would no longer be provided for after 1 April 2011. Birmingham had carried out a consultation on the proposals as part of wider efforts to reduce its overall budget, and the plans were approved by the Council at meetings on 1 and 14 March this year. Lawyers for the families claimed that the local authority’s proposals did not promote equality under the Disability Discrimination Act 1995.

They also argued that the consultation process carried out by the council failed to meet legal requirements in a number of areas – particularly its lack of clarity in relation to which groups would be affected, and what the options for those people who would have their care package removed were.

The council will need to find the funds within the budget already set to continue to fund for the ‘substantial’ care needs of disabled and older people whilst reviewing the setting of its adult social care budget and make a fresh decision.

Polly Sweeney, a solicitor at the firm who advised Ms A, a 65 year old lady with severe learning disabilities, said the case had national significance. “Proposals to cut mandatory duties and tighten eligibility for social care are the major issues in the social care sector,” she said. “This is about saving front line services for vulnerable and disabled people. It is a very significant outcome and with Birmingham City Council being the UK’s largest local authority; it’s very likely that the result will set a precedent for other cases. Other councils up and down the country seeking to target vulnerable groups through cost-cutting drives may be legally challenged.”

This was a very important judgment in the fight for adult social care and, whilst we need to avoid getting carried away as local authorities are still able to restrict eligibility and remain under pressure to cut costs and budgets, this case will give others pause for thought before doing so.