The Queen v Isle of Wight Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 11 November 2011 |
| Neutral Citation | [2011] EWHC 2911 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 November 2011 |
[2011] EWHC 2911 (Admin)
CO/4899/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Lang DBE
(on the application of JM and NT, by their litigation friends)
David Wolfe and Elizabeth Prochaska (instructed by Irwin Mitchell) for the Claimants
James Goudie QC and Edward Capewell (instructed by Helen Miles, Isle of Wight Council) for the Defendant
Hearing dates: 25 th–26 th October 2011
Introduction
The Claimants are two severely disabled adults who are in receipt of community care services from the Defendant, the social services authority in the Isle of Wight.
The Claimants seek judicial review of the Defendant's decision, in February 2011, to restrict the eligibility threshold for adult social care, as part of a budget plan designed to reduce the Defendant's overall expenditure. They contend that the Defendant acted unlawfully by:
a) failing to comply with the requirements of the statutory guidance governing the provision of adult social care;
b) failing to comply with the public sector equality duty in the Disability Discrimination Act 1995, s.49A;
Initially permission to apply for judicial review was refused on the papers, on grounds of delay and lack of standing, but it was granted following an oral hearing on 8 September 2011.
The Facts
(a) NT and JM
NT is 32 years old. He is autistic and he has learning disabilities. Since 2000 he has lived in residential accommodation provided by the Defendant during the week, but he returns home to his mother every weekend. His care plan specifies Band 2 long term residential accommodation for persons with learning disabilities, to meet his care needs in a safe, structured environment.
Although he can attend to some basic needs, he requires support with domestic tasks, shopping and taking medication. He is unable to identify risk and is unaware how his actions or behaviour can impact on others. He attends college half a day a week and requires support in travelling to and from college. He is highly vulnerable and anxious and he has communication difficulties, and so needs to be supported by people who understand his way of communicating.
His mother is naturally worried about the future, when she can no longer support him to the extent she does now. She considers that his social life and access to activities are already extremely limited. She is concerned that if his care support were to be reduced or withdrawn, he would become significantly socially isolated and his quality of life would suffer.
JM is aged 32. He is severely autistic and has a brain injury acquired at birth. He lives with his parents who are retired and devote their lives to his care. He needs support with all areas of his daily life, his personal care and in order to engage in activities and access the community. He is almost completely unable to express himself verbally and is unable to read or write. He needs supervision throughout the day and would be extremely vulnerable if left unattended. He is easily distressed and needs emotional support to remain calm.
The Council makes direct payments for his care. Since 2006, the Council has provided 1:1 support for seven hours a day, 5 days a week. During these hours JM will engage in activities with his carers, for example, listening to music, swimming, walking. His parents, who are in their 60's, care for him the rest of the time, but it is hard work and they are finding it increasingly difficult to manage as they get older. The Council also provides 42 nights per year respite at Westminster House, a centre operated by the Council.
(b) The Council's eligibility criteria
In May 2004, the Council's Social Services and Housing Directorate published guidance on its eligibility criteria for adult social care, which remained operative until it was revised with effect from April 2011. It stated:
"The revised eligibility criteria are intended to ensure that the limited resources available are used to help those most in need whilst containing expenditure within the strictly cash limited budgets….
Effectively expenditure will only be incurred where people are at high risk or in danger of becoming a high risk….
Expenditure will only normally be incurred on the provision of direct personal care and support to users or carers in priority categories 1 and 2, immediate and high risk."
The attached "Eligibility Criteria for Adult Services Division" explained that the Council had set the local eligibility criteria in line with the 'Fair Access to Care Services' ('FACS') criteria. There were four categories (or 'bands', as described in FACS):
Category 1 – Immediate Risk/Crisis
Category 2 – Substantial High Risk
Category 3 – Moderate Risk
Category 4 – Low Risk
Only Categories 1 and 2 were eligible for the provision of services.
The Council adopted the risk factors set out in the FACS guidance, save that it added an additional risk factor to Category 2, namely:
"the criteria for Category 3 are met but the likelihood is that if no services are provided the situation would deteriorate within 2 to 3 months so that there would be a critical or substantial risk."
The Council assessed NT's needs in February 2010. The overview assessment was that he was in the 'Critical' band of the Council's eligibility criteria. His needs were assessed using an internal scoring system, according to the amount of 'help' required. Regrettably the scoring did not correspond to the Council's eligibility criteria, and did not comply with the FACS guidance. Therefore it was not possible to see how many of his risks had been assessed as 'Critical'. In some respects, he was assessed as requiring 'low level help', which probably means that the risks associated with these needs were not assessed as 'Critical'.
According to Mrs Wixey, who is employed as Head of Commissioning Adult Social Care by the Council, NT has been assessed as 'Critical' for the past 11 years and he is unlikely to improve. He has not yet been re-assessed under the revised criteria.
Counsel for the Defendant explained at the hearing that it was the Council's practice to describe its service users according to their highest assessed eligibility criterion, as a convenient shorthand label. So a user would be described as 'Critical' if he or she had at least one risk factor in the 'Critical' band, even if his or her other risk factors were 'Substantial', 'Moderate' or 'Low'. However, only the risks identified as 'Critical' or 'Substantial' would be met by the Council.
According to Mrs Wixey, JM has been classed as 'Critical' ever since moving to the Isle of Wight in 2000. He was re-assessed in March 2011, under the new eligibility criteria. All his risks were assessed as 'Critical', with the exception of Mobility, for which he had no needs. I was not shown his earlier assessments, under the previous eligibility criteria.
(c) The proposal to change the eligibility thresholds
The Council's evidence was that it was facing challenging financial circumstances because of a reduction in central funding. In order to deliver a balanced budget for 2011/12, the Council needed to achieve substantial savings.
In the context of adult social care, the financial pressures were particularly acute because of the high proportion of older people moving to the Island to retire. The current and projected population profile of the Island showed ever increasing adult social care costs with no comparable increase in central government funding. The Council's spend, per head of population, on adult social care was significantly higher than the average spend by other local authorities.
On 7 September 2010 a letter was sent to all users of the Council's adult social care services informing them that a report would shortly be going to the Council's Cabinet, and then to the full Council, which would set out proposed changes to the provision of adult social care. The letter made clear that consultation would take place before any decisions were taken, and that an equality impact assessment would also be undertaken. The proposals were:
"Raise the eligibility threshold in line with FACS (Fair Access to Care Services) criteria used to determine who the council provides adult social care services to, so that those with the greatest needs are assured of support while those at greatest risk are also provided with targeted support in those areas in which they are most vulnerable."
"Revise the council's charging policy so that … people aged over 80 years would be assessed on the same basis as those aged under 80 years."
"Revise the council's charging policy so that all people are assessed to contribute on the basis of the overall value of their allocated personal budget rather than how they are choosing to spend it."
On 14 September 2010, the Cabinet met and considered a 'Second Budget Review' report from Mr David Pugh, Leader of the Council, which proposed a range of potential savings as part of its ongoing financial strategy. These included the proposed changes to adult social care provision set out in the letter of 7 September 2010 and a proposal to cease the learning disabilities services provided at Westminster House.
The specific proposals for adult social services were contained in Appendix 3 to the report. The change in eligibility thresholds was estimated to provide a full year saving of £1.5 million. The report advised that any changes to the thresholds "must be on the basis of adequate consultation." It also stated:
" 2. Impact
Change the eligibility threshold in line with FACS (Fair Access to Care Services) criteria used to determine who the council provides adult social care...
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