Counting the cost of cuts

The High Court recently quashed Birmingham City Council's attempt to change its eligibility criteria for adult care. In the first of a two-part series, Linda Walker looks at what the ruling means for local authorities.

The challenges that local authorities face when making decisions about identifying savings and cutting services was brought to the fore recently in a case involving Birmingham City Council – R (on the application of W) v Birmingham City Council: R (on the application of M. G and H) v Birmingham City Council (2011) – where the Council attempted to change the eligibility criteria in respect of adult care services. In a well-publicised ruling, Mr Justice Walker found that Birmingham City Council had breached its duty under the Disability Discrimination Act 1995, to give proper consideration to the impact on disabled people when it decided to restrict adult care services to those whose needs were “critical” - that is, the most severely disabled.

This meant that anyone whose needs were classified as “substantial” would no longer have social care services paid for by the Council. This affected an estimated 5,000 vulnerable people who would have lost their care provision. The significance of the case for other councils should not be underestimated. Where cost-cutting initiatives have adverse effects on vulnerable groups and proper consideration is not given to the effects of proposed changes, there is the potential for legal challenges to delay, or even prevent the councils making their proposed changes. Whilst it is a time-consuming process, following procedures scrupulously to avoid breaching equality duties is essential.

However, it is not just about the breaching of the equality duty. Councils need to take great care over the consultation process itself, an aspect to be explored in the next article.

As we know, Government policy has at its core the need to make savings in order to reduce the budget deficit. Councils are therefore being forced to reduce or reconfigure the number and range of services that they provide. This throws up the potential for equality duties to be overlooked and the needs of a wide range of groups not to be addressed as a result. Apart from the social consequences that this may throw up, there is also likely to be a significant longer term cost and potential for more legal challenges like the one against Birmingham.

Public sector bodies are required under equality legislation to consider equality duties when assessing the impact of changes to policy and spending. For example, authorities must have due regard to the elimination of unlawful discrimination and harassment, promotion of equality of opportunity and the need to take steps to take account of disabled persons’ disabilities. The fact that these equality considerations apply, does not mean that changes in services cannot be made, but they do require that these be fully appreciated, both individually and holistically.

This latest judgement makes it clear that there is a need to clearly assess and analyse the practical impact on those whose needs are affected by cuts or changes in eligibility criteria. In cases where the decision may affect large numbers of vulnerable people, many of whom fall within one or more of the protected groups, the due regard requirement is very high, and requires analysis of all of the information with specific statutory considerations in mind. That is to say that a conscious approach to their specified needs. Unfortunately for Birmingham, the Council had not given proper consideration to the impact on disabled people of their cuts and had failed to adequately consult on its proposals.

It was made clear in the judgement that general awareness of their duty is not enough, there must be a “substantial rigorous and open-minded approach” to the process of cutting services. Further, the duty may require positive steps to be taken if the circumstances require it to address disadvantage to disabled people. This means that if a risk of adverse impact is identified, measures to avoid that impact must be considered before committing to a particular solution.

It is essential that a rigorous impact assessment is carried out, and it must contain sufficient information to enable a public authority to show it has paid due regard to the duty and has identified methods for mitigating or avoiding the adverse impact of their approach.

It is emphasised in the judgement that due regard must be given before and at the time that a particular policy which will, or might affect disabled people is being considered by the public authority in question. As such, due regard to the duty must be an essential preliminary to any important policy decision, not a rearguard action following a concluded decision, i.e. consideration of the duty must be an integral part of the formation of a proposed policy, not a justification for its adoption. It is also a continuing duty and should be engaged in all stages of a decision-making process.

In this particular case, the judge concluded that 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”. Essentially Birmingham Council had failed to ask the right questions and councillors were not provided with the right information to answer those questions.

On the positive side for Birmingham however, Mr Justice Walker acknowledged the difficulties faced by council officers and stated that he was not making any personal criticism of officers of the council. He acknowledged that although it was not necessary to his decision, council officers were working under immense pressure both of time and resources.  Sadly however, being too busy is not a defence in court against a legal challenge.

So where does this leave councils? The judgement, whilst clarifying how authorities should carry out this exercise in the future, also highlights how complex the decision-making process has become, particularly at a time of such austerity. Councils have the difficult task of balancing the needs of all of their citizens, in a limited timescale and against the back drop of having to make increasing unrealistically high savings. However, there is no excuse for not following proper procedures or not taking into account relevant considerations, especially those as fundamental as equality duties which go to the core of a civilised society's values.

It is unlikely that this will be the last we hear on the subject as councils continue to count the cost of the cuts.

Linda Walker is Head of Public Law and Corporate Governance at national law firm, Dickinson Dees LLP.