High Court rejects challenge to maximum expenditure policy on adult care

A High Court judge has rejected claims that a council unlawfully decided to introduce a ‘maximum expenditure policy’ on funding for adult care packages where people choose to live in the community.

Worcestershire County Council adopted the policy (on 8 November 2012) under which – absent exceptional circumstances – the maximum weekly expenditure on care in the community for an adult under 65 years of age would be “no more than the net weekly cost…of a care home placement that could be commissioned to meet the individual’s assessed eligible needs”.

The local authority had in substance applied this policy to adults over 65 since 2008.

The claimant in D, R (On the Application Of) v Worcestershire County Council [2013] EWHC 2490 will turn 18 in 2014. He has a number of needs, deriving from medical conditions that include learning disability, attention deficit hyperactivity disorder, auditory processing difficulties and epilepsy.

His mother, his primary carer and litigation friend, was concerned to ensure that he had appropriate care as he moved into adulthood, believing that he would need a very high level of care, 24 hours per day.

The mother, who has recently been diagnosed with cancer, doubted that the council’s new adult community care policy would properly address her son’s needs.

Two procedural grounds of challenge based were advanced (the mother having reserved her son’s rights on challenging the substance of the policy).

These were that the council in adopting the policy:

• Used a consultation process that was materially defective, notably in that it failed to provide consultees with sufficient information to enable them to make a sufficiently informed response to the proposal; and
• Failed to comply with its public sector equality duty under section 149 of the Equality Act 2010.

The judge, Mr Justice Hickinbottom, said the concerns of the mother were “entirely understandable” but he rejected the claims that Worcestershire had acted unlawfully.

On the first ground, the judge said: “The main focus of criticism [from the claimant’s QC] was…. in the suggestion that the consultation failed to identify the consequences for those who were affected. That submission was made on the premise that perhaps half of those who fell within the scope of the policy would have to choose between staying at home and not having all of their eligible needs met, or moving into a residential home, for many the latter being the only realistic option.

He added: “For the reasons I have given, that is not so. For those whose preferred care package at home costs more than the equivalent care in a residential home, the policy will mean hard consideration of how their needs, and which of their preferences, can be met at home.

“For some, no doubt, their eventual care package will contain elements that are not their first choice. But that was made very clear in the consultation documents. Indeed, unhappy as it might be, it was this trade off of preferences and choice for service users on the one hand, and cost saving on the other, which is at the very heart of the policy, and was at the very heart of the consultation.”

On the public sector equality duty, the judge rejected all four arguments advanced by the claimant’s legal team.

He said, for example, that he was “quite sure” that Worcestershire’s Cabinet members had more than adequate information properly to consider the issue.

The judge also rejected a claim that the equality impact assessment was defective because it did not contain any quantitative or qualitative data in relation to the groups which might be affected by the policy.

“The simple answer to the submission is that such data were not necessary,” Mr Justice Hickinbottom said, because the adverse effects of the policy were obvious.

A submission that the Cabinet failed to have a proper understanding of the potential detriment to disabled people, and consequently failed properly to consider how the true detriment might be mitigated was meanwhile “based on the (false) premise that substantial numbers of disabled people would be required to choose between staying in the community with insufficient support to meet their eligible needs, or go into residential care”.

The judge said: “As I have indicated…, the potential negative impact of the policy on those with the protected characteristic (ie disabilities) was clear.”

On the claim that the council had not considered where else the savings might be made, he said: “The council of course considered, generally, from where the enormous savings required to be made could come. Given the financial position of the council, it was inevitable that some would come from the adult community budget.

“The option of changing the eligibility criteria was considered. In all of the circumstances, the council was not required to do more in considering how these savings might be made outside the adult community care budget.”

Mr Justice Hickinbottom concluded that he had “no doubt that the Cabinet did have due regard to its PSED, and in particular the need to advance equality of opportunity”.

On the implementation of the policy, the judge said: “...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.”

Responding to the judgment, Anne Clarke, interim head of adult social care at Worcestershire, said: "We are pleased that the judgement has come down in our favour and we will now be working to implement the policy. We are always aware of our duties to fully consult on any major changes to policy and ensure we have due regard to our equalities duties and the judge has agreed that we have done both regarding the maximum expenditure policy."

The mother of the claimant said she was disappointed at the decision, but added that it was some comfort that the council had given assurances during the judicial review process that the policy would not force individuals into residential care.

Her son’s lawyers, Irwin Mitchell, warned that the policy could lead to further legal challenges in the future if it is not implemented carefully.

Solicitor Polly Sweeney said: “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.”

She added: “We welcome the guidance given by the court that the council must balance its other policy objectives when deciding how to implement their maximum expenditure policy. 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.”

Philip Hoult