Duty of care
by Claudia Wood
Community Care’s survey – finding that 10 per cent of councils had announced social care budgetary changes on the same day, or even before, the public consultation had closed – is a truly shocking statistic. Since 2006, councils have had a duty to assess the impact of their decisions on disabled people, and this, as Community Care Magazine points out, would apply to adult social care service decisions. It seems highly unlikely that local authorities would have had time to read through all of the responses – let alone analyse them and carry out a disability impact assessment – if decisions were issued so close to the consultation deadline. Issuing decisions before consultations have closed makes a mockery of the entire consultation process and has monumental legal implications for local authorities.
The experiences of Birmingham City Council – whose proposal to tighten its care eligibility criteria to critical needs only was overturned by the High Court – and Stoke on Trent Council – whose decisions to cut deaf children’s education budgets are currently being referred to the High Court by the National Deaf Children’s Society – are likely to be the tip of the iceberg. Both challenges are based on the fact that the local authorities in question did not follow due process in consulting on these changes.
As more disability charities and individuals cotton on to the fact that the consultation process in their area has been all but been disregarded, calls for judicial reviews of decisions regarding closures, cuts, increases in eligibility criteria and increases in service charges will come flooding in from across the country. Forthcoming research carried out by Demos with Scope’s support has attempted to map the extent of front-line changes to care and support services across England and Wales. It has taught us a lot about the limitations of the data collected at local level.
We might question, therefore, whether every local authority is able to carry out thorough disability impact assessments of their budgetary decisions, even if they gave themselves the time, post-consultation and pre-decision, to do so. But nonetheless, we cannot and should not lay the blame solely at local authorities’ doors. The financial settlement from central government was only announced in December 2010. Local authorities then only had until April to come up with budgets that would balance the books across the entire local authority – making it very difficult to fully consult and ruminate on their decisions. Councils were stuck between a rock and a hard place – pressure from above to design and implement substantial budgetary cuts in a very short space of time; and now pressure from below as disabled groups start holding their councils to account for the quality of their decision making processes.
If more and more councils fall foul of judicial reviews regarding their lack of consultation over the cuts they had to make, maybe we should think hard about who picks up the bill.