High Court grants permission for JR of max expenditure policy on adult care

A High Court judge has given permission for a teenage claimant to bring a judicial review challenge over a council’s plans for a ‘maximum expenditure policy’ on funding for adult care packages where people choose to live in the community.

The Cabinet at Worcestershire County Council approved the policy, which affects new service users under the age of 65, on 8 November 2012. If implemented, it would allow the authority to limit the sum it contributes to fund a service user's community care package.

After approving the policy, the council said its social workers would "work with those whose package is deemed too costly to see whether they can reduce the overall costs by considering a range of other options such as taking a direct payment, or by using more assistive technology which can support people to live independently more cost effectively".

It added that Shared Lives, where people with similar needs live together in a supported environment, was another option.

The claimant, D, is 17 and lives with his mother. He has been diagnosed with moderate learning disability, epilepsy and ADHD. D also has autistic traits and challenging behaviour.

His lawyers, Irwin Mitchell, are arguing that the local authority failed to have due regard to its duties under the Equality Act. The firm also claim that there was a failure to undertake a lawful consultation.

Critics of the policy have suggested that the policy could leave individuals with no choice but to go into residential care.

D’s mother wants her son to be able to live independently, but believes he may be forced into care if he is unable to cover the extra cost of social care support beyond the maximum cap.

Polly Sweeney, a public law specialist at Irwin Mitchell, said: “The judge has now given permission for our client to challenge the council’s policy in court. The policy is likely to have a significant impact on the ability of many disabled people within the region to live an independent life in the community.

“We have real concerns that the process by which the council took this decision is seriously flawed and as a result, the needs of disabled people have not been properly considered.”

Sweeney added: “We are particularly worried about how young people going through transition will be affected by the policy, or individuals who may have suffered a significant change in their circumstances, such as those who may have suffered a brain injury and so will need to access support from the council for the first time.”

Irwin Mitchell said none of the exceptions to Worcestershire’s policy would apply to D.

The county council has insisted that no-one would be forced into a residential or care home against their will. It also said it did not anticipate the numbers of people moving into care homes to rise as a direct result of the policy "due to the range of other options available". 

Simon Mallinson, Worcestershire County Council's Head of Legal and Democratic Services, said: "The High Court has only given permission for the legal challenge to be heard, and has made no decision that the policy is unlawful.

"The council is committed to ensuring all eligible needs are met, and believes the policy would make the most efficient use of the funding available, allowing it to go where it is most needed. We do not accept that it is unlawful to make best use of council tax-payers' money, but pending the outcome of this challenge, we have chosen not to implement the policy in the meantime to avoid potential disruption."

The minutes for Worcestershire's Cabinet meeting on 8 November 2012 outlined a number of points made during the discussion about the policy. These included that decisions would be made on an individual basis and no general ‘cap’ was being imposed.

The minutes said: “It was believed that the policy proposed was not one which would force individuals to leave their homes nor did it interfere with the state's duty of respect for anyone's private and family life. It was about providing a fair and consistent policy for all users. It was believed that the proposed policy was compliant with Article 8 of the Human Rights Act.”

It was also claimed that the consultation process had been wide-ranging, involving 20 events with nearly 300 attendees.

“The council had no wish to prevent capable individuals from continuing to live within their own homes. The primary aim of the policy was to ensure individuals would have their needs met but in a cost-effective way,” the minutes added.