Councils in the dock over disability
by Claudia Wood
Whilst it seems all legal news at the moment is about twittering footballers, the big judicial decision in social care this week is Mr Justice Walker overturning Birmingham's decision to raise its eligibility criteria for state funded care, on the grounds that it failed to comply with the Disability Discrimination Act 1995.
Obviously, this might not seem as interesting as Ryan Giggs to a casual reader. But read on. The Birmingham decision is big news. With big implications for local authorities across the country. Firstly, it means that any local authority that attempts to restrict its social care eligibility criteria to people with “critical” needs only, can be challenged, as it may breach the rights of those using the service. It does make you wonder why the government bothered coming up with a “critical” threshold if local authorities weren’t going to be able to use it to gatekeep the funding they provide. In any case – six local authorities providing care to critical needs groups only are now at risk of being flooded by legal challenges to overturn this benchmark.
But there’s more. Justice Walker actually said Birmingham had not complied with its “Disability Equality Duty” in moving to critical needs only without proper analysis of the impact this would have on disabled people in the area and without proper consultation. Under the Duty, councils must give due regard to eliminating discrimination, promoting equality of opportunity, eliminating harassment, treating disabled people more favourably if necessary, promoting positive attitudes on disability and encouraging participation of disabled people.
And this charge could be levelled at many local authorities - 78 per cent of whom now have social care eligibility set at “substantial or critical” needs. Many of whom are consulting on fee increases for their social care services. Most of whom have closed or restricted the operation of some of their services such as day centres, leisure activities and clubs for disabled and older people. In theory, every one of these local authorities might be challenged for not fully considering the discriminatory impact these actions have had on disabled people in their area.
But as Peter Hay, the director for adult social services in Birmingham rightly pointed out, his council was facing tough choices on what services to fund and which to sacrifice. The axe had to fall somewhere. And the fact that the Government only told local authorities exactly how much money they would be getting in the Funding Settlement in December didn’t help. It meant councils only had a few months to juggle the numbers and work out what could stay and what had to go across all of the different local service areas. It’s hardly surprising they didn’t have time to fit in a comprehensive impact assessment and consultation process on the proposed changes before the end of March.
Of course, I agree with the judgement – restricting social care to those with critical needs only is frankly a life-threatening step for thousands of people. And it is clear from our Disability in Austerity study that local authorities have not adequately considered the cumulative impact cuts, charges and closures are having of disabled people. But should we use the legal system and rights framework to punish each council individually for this? Or should we consider the bigger picture? Birmingham didn’t cut social care services on a whim. It was faced with an impossible funding situation handed down to it from central government. And Justice Walker hasn’t magically fixed this problem. He simply told Birmingham not to cut social care, and to find the money by cutting something else.
We have not fixed the problem, but simply shifted it. We may soon be in a situation where local authorities identify services to cut based on their risk of being taken to court. Disabled people are rightly protected by a range of discrimination and equalities legislation. But what about homeless people? teenage mothers? Survivors of domestic violence? Groups such as these have no specialist legislation to protect them from the impact of cutting their services. Will local authorities like Birmingham, warned off of cutting disability services, move their efficiency gains to these groups where legal action is much less likely?
Perhaps we should not see the Walker Judgement as an open door to challenge individual local authorities’ social care funding decisions. Perhaps we should see it as the time to ask a bigger question - do central government cuts risk infringing a wide range of human rights and entitlements, across all vulnerable groups in society? That really would be a case to answer.