A large proportion of a council’s budget is devoted to social care. Social care is an essential part of the fabric of our society. Whether people need support with mental health, because of physical disabilities, learning disabilities, or because they are older and need additional support. It enables people to work, socialise, play an active role in our communities and care and support family members.
In September 2020 the TUC reported that many councils are spending less per capita on adult social care than in 2010. A number of council’s are reporting plans to make further cuts to social care services in order to balance their budgets.
Contact, a charity supporting families for disabled children, are receiving reports from families that:
- They are waiting longer for appointments and assessments; this hampers child development and progress.
- It's harder to get services after assessment; what they do get is being reduced or stopped, sometimes without proper consultation, and families are having to use lawyers and the courts to challenge decisions.
- They are increasingly being charged for services and equipment.
- Accessing support and diagnosis from Child Adolescent Mental Health Services (CAMHS) continues to be almost impossible; this is causing long term damage and costly support later on
Families and communities have fought against cuts to respite services, short breaks services, day centres and disabled transport services.
The legal position
Councils must meet the eligible social care needs of disabled and older people as well as those of carers. The duty to meet eligible needs is one that exists regardless of the resource problems a local authority may have. These duties are enshrined in the Care Act 2014 and the Children Act 1989. Under S111 of the Local Government Act 1972, a local authority has power to do anything that will facilitate or is conducive or incidental to the discharge of its (statutory) functions.
Council’s also have the “well being power” under s2 LGA 2000 to do anything that is likely to achieve the promotion or improvement of the economic, environmental or social wellbeing of their area. Under s2(4) a local authority can give financial assistance to any person or provide goods, services to any person. When setting a policy and budget on social care provision a council must also ensure it promotes equality and does not discriminate.
Examples of unlawful social care budget cut proposals include those of Birmingham City council and the Isle of Wight council in 2011. In these two cases the High Court ruled in favour of families who brought a judicial review. The High Court decided that the consultation and policy proposals to impose cuts to social care were unlawful.
Councils must consult where they intend to make significant changes to public provision. In the Isle of Wight case the judge stated:
“I consider that the consultation document provided insufficient information to enable those consulted to give intelligent consideration and an intelligent response”, and that “Consultees, including the parents of the Claimants, were left uncertain as to what impact the revised criteria would have on the assistance they received from the Council”
When councils set their social care budgets, the consultation duties are clear. The Supreme Court’s judgement in Moseley v London Borough of Haringey (2014) shows that a high standard of fairness is required in consultations that propose cuts to benefits or services.
In particular, service users must be provided with sufficient information about the proposals to make an informed response.
Councils have a duty to comply with the Public Sector Equality Duty (PSED) so if cuts to certain social care services are planned, consultations need to spell out honestly what those cuts are and the possible impact of them. The legal duties require local authorities to understand the impact of a decision to cut on different groups with protected characteristics – such as disability, age, race or religion.
Cuts proposals at risk of legal challenge
Services must be in place to reduce needs for care and support: For many councils, a particular challenge in the face of any reduction of funding will be the statutory duty under the Care Act section two, which requires them to ensure services are in place to prevent, delay or reduce needs for care and support. For example, deciding to cut to funding for a day service or respite care for brain injured clients, with no clear reasonable alternative, may risk a legal challenge for failure to comply with this duty. A council could be challenged if they rely on charity or voluntary care provision without clarity on whether that service will need remain viable.
Cutting funding for residential or domiciliary care contracts: It could be argued that this would be a failure to comply with the section five Care Act duty to promote the efficient and effective operation of a market in care services.
Maintaining a local market: For the same reason, careful attention will be needed when working with clinical commissioning groups (CCGs) to ensure there is a fertile local market with CQC compliant services. There needs to be sufficient bed and carer capacity and advocacy services.
Low payment rates for care staff: A council or CCG that tries to save money by setting direct payment rates for certain care staff at a level that is much lower than, say, supermarket shelf stackers may face problems. They run the risk of undermining an effective market for trained carers and this could lead to a legal challenge.
Social care assessments must be thorough and personal: Cutting corners in assessment of individual care needs could result in complaints and/or legal challenges from individuals who say the council is failing to comply with assessment duties.
All of the cases referred to in this article were brought by Irwin Mitchell’s specialist public law team.
The risk of legal challenge is not inherently a bad thing – it is part of the healthy system of accountability we expect in our society to ensure individual and community rights are respected and protected.