Worcestershire County Council is set to implement its policy to limit expenditure on social care packages for those living in the community after a High Court judge ruled that its consultation and decision making procedure, which led to it approving the policy, was lawful.
However, lawyers have warned that the policy itself has not been tested legally and could lead to further challenges in the future if it is not implemented carefully.
The case was brought by a 17-year-old known only as D for legal reasons, who has a moderate learning disability, epilepsy, ADHD and traits of autism who will soon be accessing adult social care services and wants to live independently in the future. There were concerns that the council had not made the true consequences of the policy clear during its public consultation and that the real impact would be that D, and others with disabilities, may be forced to either: accept a care package at home, of less than what is needed, or be forced into residential care. However, Judge Mr Justice Hickinbottom did not accept the claimant’s case.
Law firm Irwin Mitchell took the matter to Judicial Review on D’s behalf after the council refused to consult again or review their decision on the policy.
Disappointment at decision
D’s mother said that although she was disappointed at the decision, it was some comfort that the council had given assurances during the Judicial Review process that the policy will not force anybody into residential care.
“We brought this case because we wanted to ensure that not only will my son be protected from going into residential care, but also to help others who may be forced into a similar situation in future,” she said. “The Judge has accepted the council’s assurances that our concerns are not valid and I can only hope that over the coming months and years, the council will show us that the Judge was right in reaching this view.”
Polly Sweeney, a specialist public law solicitor at Irwin Mitchell who brought the legal challenge on D’s behalf, said the firm was disappointed at the outcome: “However, this challenge was not against the lawfulness of the policy itself as the policy has not yet been applied to anyone.
“We remain significantly concerned that the policy breaches disabled people’s fundamental rights to independent living and the judgment… recognises that the policy will ‘sacrifice choice and control’ in favour of reducing public expenditure.”
Although the Judge dismissed the claim, he gave clear guidance to the council on how the policy should be implemented: “...In exercising its discretion as to whether to allow greater costs than the residential equivalent, the Council will be required to take into account its own policy objectives of giving disabled individuals control and choice over their care support, encouraging disabled individuals to live independently in the community, and having less not more individuals in residential care.
“It will also be required to take into account its assurances during the consultation period – and in the course of this claim – that no individual will be forced into living in residential care, as a result of this policy alone.”
Sweeney welcomed the guidance: “It is now over to the council to prove that this policy will not in practice have the impact that we fear it will have.
“We will be watching carefully over the coming months as to how the council is implementing this policy to ensure that their assurances given during the course of this case are adhered to. We would urge any individuals who do find themselves affected by this policy to come forward and take legal advice as soon as possible.”