Isle of Wight becomes latest council to face JR over changes to adult care eligibility

Two disabled men have been given permission to proceed with a judicial review of Isle of Wight Council’s proposed changes to its adult social care services.

The local authority had decided to adopt a new eligibility threshold from April next year, when it will only meet the care needs of either individuals with critical needs or those with substantial needs who are considered to be at greatest risk of not being able to remain at home safely.

Irwin Mitchell, solicitors to the claimants, said the case against Isle of Wight was being brought on a number of grounds. These are that:

• The council had failed to follow the government’s Fair Access to Care Services and Prioritising Need guidance on setting eligibility criteria. In particular, the firm claimed, there was a lack of clarity about which groups would be affected and what the options were for those who will have their care package removed
• The council failed to have due regard to the duty to promote equality under the Disability Discrimination Act 1995
• The claimants’ human rights would be severely compromised as the proposals “threaten their right to a private life and their ability to access essential support and care to enable them to live safely and maintain a level of independence”.

The law firm said that it knew of no other local authority that had in place a policy that split one of the four bands set out in the guidance (critical, substantial, moderate and low).

The case has been brought on behalf of JM, who has severe autism and brain damage, and NT, who has a-typical autism and a learning disability. The claimants, who are both 32 years old, require 24-hour care from their family and the authorities, Irwin Mitchell said.

The law firm claimed that the council’s plans could affect up to 2,000 disabled people on the Isle of Wight, “who will lose all or parts of their social care packages currently provided”.

On Thursday (8 September) Deputy High Court Judge Ian Dove QC ruled that the claimants had an arguable case. He allowed the claim to go ahead, despite the fact that it was lodged later than expected.

The full judicial review hearing is expected to take place before the end of October.

Anne-Marie Irwin, a solicitor in Irwin Mitchell’s public law team, said: “The Isle of Wight Council’s decision making process appears to be completely unfair on those people and families that are affected. The legal arguments also outline the argument that decision makers failed to consider the full impact of these proposals for disabled people and whether they could be avoided or at least mitigated.”

She added: “It is a concern that all the options for the citizens of the Isle of Wight have not been properly presented to them. Cutting vital care provision for the disabled and elderly has not been properly justified and the full impact of the proposals has not been adequately assessed. Significantly, it will be argued that the proposals fail to have due regard to human rights and the need to promote disability equality – a legal requirement under the Disability Discrimination Act 1995.”

Ian Anderson, Isle of Wight Council’s Director for Community Wellbeing and Social Care, said: "We are disappointed by this decision and will need to consider fully its implications before commenting further."

Earlier this month a challenge to Lancashire County Council’s proposed changes to its adult care eligibility threshold failed. These changes would have meant that going forwards services would only be provided if a person’s needs were categorised as “substantial” or “critical” under the scheme rather than “moderate”.

However, in May a High Court judge ruled that Birmingham City Council had failed to ask the right questions in relation to disability equality duties and conducted a flawed consultation when it decided that it would no longer pay for any adult care needs that were not ‘critical’. Mr Justice Walker ruled that the original decision was unlawful.

Philip Hoult