High Court judge refuses permission for JR over 'critical-only' care policy

A group of disabled claimants have been refused permission to apply for judicial review of a local authority’s policy of only providing access to care services to people with needs classed as ‘critical’.

James Dingemans QC, sitting as a Deputy High Court judge, made the ruling this week on a renewed oral application. However, Local Government Lawyer understands that an appeal is likely.

The judge concluded that a claim that West Berkshire Council’s policy was irrational in the Wednesbury sense was unarguable. He also said it was for local authorities, not the courts, to decide what their social care policies should be.

West Berkshire is one of only three authorities in the country – the others being Northumberland and Wokingham  – to operate a ‘critical-only’ policy under the Fair Access to Care Services/Prioritising Need eligibility scheme. Its policy has been in place since 2003.

When launching the claim in May on behalf of five severely disabled young people, law firm Irwin Mitchell said it would argue that a critical-only policy was in itself unlawful, as a breach of section 2 of the Chronically Sick and Disabled Persons Act 1970. The challenge had been backed by charity Mencap.

Anne-Marie Irwin, a public law specialist at Irwin Mitchell’s London office who is acting on behalf of the clients in West Berkshire, said: “This decision is hugely disappointing as we believe the shocking facts of this case speak for themselves. By making use of a critical-only policy, some of the most vulnerable members of society are left in a position which means that the care they are entitled to is wholly dependent on where they live – a postcode lottery which creates serious inequalities for potentially thousands of people.

“It is absolutely vital that our clients are given a chance to access the care they need that will ensure people are not left vulnerable to harm or isolation from their local communities. We are now discussing the options with our clients who are considering an appeal against the decision.” 

James Goudie QC and Edward Capewell of 11KBW were counsel for West Berkshire.