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Council faces judicial review over maximum expenditure policy for care

A county council is facing legal action over its proposed ‘maximum expenditure policy’ on funding for adult care packages where people choose to live in the community.

Irwin Mitchell, lawyers for the claimant, argued that Worcestershire had failed to undertake a lawful consultation when deciding on the policy.

The local authority’s Cabinet approved the policy on 8 November 2012.

Irwin Mitchell, who are acting for a disabled teenager, also accused the council of failing – when approving the new policy – to have due regard to its duties under the Equality Act.

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The law firm described the policy as ‘draconian’ and claimed that their client could be forced to live in a residential home.

Irwin Mitchell argued that in cases where the cost of living in the community was more expensive than living in residential care, the individual would “either have to make up the difference themselves, or be left with no choice but to go into residential care”. 

The 16-year-old claimant is 16 and has been diagnosed with moderate learning disability, epilepsy and ADHD. He also has autistic traits and challenging behaviour.

He currently lives with his parents at the family home. However, his parents are keen for him to be able to live independently in future through a supported living tenancy.

Irwin Mitchell said the claimant would not be able to cover the extra cost beyond the maximum for care in the community.

The law firm wrote to Worcestershire, calling on it to undertake a new consultation and equality impact assessment. However, the authority has refused to do so.

Polly Sweeney, a public law specialist at Irwin Mitchell, said: “The policy which the council has introduced 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. 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.”

Sweeney said the claimant’s care and medical needs, and in particular his epilepsy and need for constant supervision, meant he would require 24-hour support.

She added: “If the council’s policy remains unchallenged, the costs of such a care package in the community may well be more than the costs of residential care. This would mean that he would be forced into institutional care whilst his non-disabled peers are able to continue living in the community.”

Sweeney said that none of the examples given by Worcestershire where it would consider exceptions to the policy applied to D’s case.

A spokeswoman for the county council said it was unable to comment at this time.

However, the minutes for the 8 November 2012 meeting 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.

Philip Hoult

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