“Potentially Devastating” - Judge’s Ruling On High Court Overturn Of Birmingham Cuts To Disabled People’s Services*
19 May 2011
The judgment by Mr Justice Walker, handed down today will require the largest local authority in Europe to review its plans to cut services to thousands of its most vulnerable citizens.
This follows the successful overturning of Birmingham City Council’s decision to cut its adult social care budget so that only individuals with ‘critical’ needs would receive a service. This would have meant withdrawing Council-funded services from all disabled people assessed as having “substantial” needs**, which would include many severely disabled people.
The judge described the move to funding for critical-only policy as “potentially devastating”. He found that, both when setting its budget and changing its eligibility policy, the Council failed to give proper consideration to the impact on disabled people (as required by legislation***), and failed to undertake adequate consultation on its proposals.
The issue that the Council needed to address was “whether the impact on the disabled of the move to critical only was so serious that an alternative which was not so draconian should be identified and funded to the extent necessary by savings elsewhere.” But the Council failed to “ask the right questions” and Councillors were not provided with the right information to be able to answer those questions. In addition, the consultation on the proposals was flawed, because essential information on the proposals was either unclear or only provided at a very late stage.
Karen Ashton, of Public Law Solicitors, solicitor for M, G and H, said:
“In cash-strapped times such as these, the public sector must do more to avoid the consequences of cuts falling on those who are least able to bear them. What this case demonstrates is that this may be not only a moral obligation, but also a legal one. Local Councils (and all other public authorities) must learn this lesson and learn it fast – otherwise there will be many more of these cases coming before the courts. ”
Kari Gerstheimer, Head of Legal Services, Sense, the national deafblind charity who prepared an expert witness statement for the court said:
“This judgment sends a strong message to Councils around the country that even though we are in a climate of cuts, a civilised society must never choose to cut services to disabled people who have the greatest needs.”
NB: An anonymity order is in force prohibiting publication of any information that might lead to the Claimants’ identification
For Media Enquiries:
Public Law Solicitors – Karen Ashton / Alastair Wallace
Tel. 0121 256 0326 / 07812 165 090
Sense: Vanessa Stevens 0207 520 0965 / 07725166608
NOTES
Birmingham’s ‘cuts’ budget included immediate savings of £51million from its adult social care spending in 2011/12 and a major part of this was to come from the change in its eligibility policy to “critical only”. The Council said that it would ‘signpost’ those who would no longer be eligible to possible alternative sources of support, such as the voluntary sector, but no detailed plans were in place when the Council made its decision.
* R on the application of M, G, H and W) v Birmingham City Council CO/1772/2011 and CO/1765/2011
** Department of Health guidance defines substantial needs as:
• There is, or will be only partial choice or control over the immediate environment; and/or
• Abuse or neglect has occurred or will occur; and/or
• There is or will be an inability to carry out the majority of personal care or domestic routines; and/or
• Involvement in many aspects of work education or learning cannot or will not be sustained; and/or
• The majority of social support systems and relationships cannot or will not be sustained ; and/or
• The majority of family and other social roles and responsibilities cannot or will not be undertaken.
Prioritising Need in the context of Putting People First: A whole system approach to eligibility for social care Guidance on Eligibility Criteria for Adult Social Care England 2010.
***Section 49A Disability Discrimination Act 1995
PUBLIC LAW SOLICITORS: Public Law Solicitors was founded in 2003 to provide a specialist legal service in the fields of public law, community care and human rights. The firm has a strong commitment to equality and social justice. Based in Birmingham, they have an acknowledged national reputation for excellence, and act for clients in challenges to central and local government and other public bodies. They have been at the forefront of the legal challenges to the cuts to public services.
“A team of lawyers who are utterly committed to their clients.” Chambers 2011
Sense provides specialist information, advice and services to deafblind people, their families, carers and the professionals who work with them. We run services across England, Wales and Northern Ireland and employ 2,000 people most of whom work in services directly with deafblind people. Our patron is HRH The Princess Royal.
Deafblindness is a combination of both sight and hearing difficulties. Some of these people are completely deaf and blind, but others have some remaining use of one or both senses.
Causes of deafblindness include premature birth and exposure to rubella during pregnancy, which can cause babies to be born deafblind. Sense therefore supports MMR which has proven to be the most effective vaccination programme against rubella. Some genetic conditions such as Usher syndrome can also result in deafblindness. People can also become deafblind at any time through illness, accident or in older age.
Case notes on M H and G: Re R(MGH and W) v Birmingham City Council
M
M is a young man of 25 years of age. He was born with a very rare genetic disorder which has caused severe learning disabilities. He lives at home with his mother.
M cannot look after himself at all – he cannot brush his teeth, take himself to the toilet, or make himself a cup of tea. Without close supervision, he would put himself at risk, not least because he is a very friendly young man, and would go off with anyone who is kind to him.
M goes to special classes in college, but is due to leave in July. At the moment, the only support that he receives from the Council is overnight respite care from time to time. In July he will need some kind of day time activities which give him a chance to mix with other people of his own age, and to give his mum a break. It would be impossible for her to carry on if her son was at home 24 hours a day, 7 days a week.
The Council’s change in eligibility criteria may mean that no day services will be offered when M leaves college. At his last assessment, M was assessed as having substantial needs for day care, and not critical needs. Under the Council’s new policy this means that he would not be eligible for any help.
H
H will be 30 years old this year. He has always lived at home with his parents who care for him. He has severe learning disabilities, autism, and is also profoundly deaf. He can become very frustrated if he wants something and it doesn’t happen quickly enough. In his frustration, he will throw things, scratch himself, and become very upset. H also tends to eat things, such as toilet paper, which can cause him to choke, and puts objects up his nose, which is very dangerous.
H cannot attend an ordinary day centre, because of his behaviour. He is provided with specialist care workers who take him out each day so that he has a chance to meet people, and do ordinary everyday things.
H was last assessed as having a mixture of critical and substantial needs. His substantial needs included the need to get out and about in the community with the help of care staff. His family is very worried that the Council’s change in eligibility criteria may lead to the loss of his day care support. This would mean that he would be at home all day every day, except at times of respite. His parents do not think that they would be able to manage, and he might have to leave his home and go into residential care.
G
G is a 36 year old woman with microcephaly which has caused severe learning disabilities. She cannot look after herself, and has always lived with her family. She currently attends a day centre in the daytime and from time to time has overnight respite which the Council provides. When G’s mother heard that the Council was intending to change their eligibility criteria, she tried to find out how the new policy would affect her daughter. She had assumed that, because of the severity of her daughter’s disabilities, all her needs would have been assessed as critical. However, when she received a copy of her daughter’s assessment, she found that she had been assessed as having some substantial needs and now her mother is very worried about what the Council’s new policy might mean for the future.