R (D) v Worcs CC [2013] EWHC 2490 (Admin)

ISSUE: During the recession local authorities have been searching for novel ways to limit their expenditure on adult social care. Common methods include across-the-board cuts to RAS scales (ie the pounds ascribed to points on the RAS scale), cutting discretionary service facilities such as day centres, and wholesale changes to the eligibility thresholds, such as moves to critical only provision and even talk of moves to a new band of “super-critical” needs. One measure which has until now received relatively less attention has been local authority maximum spending policies.

Worcestershire implemented a policy by which the maximum weekly expenditure on a person’s care in the community was to be no more than the net weekly cost of suitable care at home.

This policy was challenged on the familiar grounds of consultation (alleged failure to provide consultees with sufficient information to enable them to make a sufficiently informed response) and breach of the public sector equality duty.

JUDGMENT: The challenge was dismissed. As regards the consultation challenge, the Court rejected the argument that the consultation had failed to identify the consequences for those who were affected. That submission had been made on the premise that half of those who fell within the policy would have to choose between staying at home and not having all of their eligible needs met, or moving into a residential home. However the judge rejected that starting premise as to the consequence of the policy.

The public sector equality duty challenge was also dismissed. The Court rejected the allegation that Cabinet members did not have adequate information to consider the issue properly. Sufficient information had been given to enable the Council decisionmakers to make an informed choice. The Court also rejected an argument that the EIA was defective because it did not contain any quantitative or qualitative data concerning the groups affected. The Court held that EIAs, or the consideration undertaken to comply with the public sector equality duty, did not necessarily have to involve examination of quantitative or qualitative data.

COMMENT: The Court took quite a conservative approach to the issues. The dismissal of the public sector equality duty challenge follows the current trend in the court’s approach to such challenges, ie courts have been giving public bodies considerable leeway in their handling of equalities issues and in the adequacy of the equalities analysis. It is also notable that, although the United Nations Convention on the Rights of Persons with Disabilities was cited to the Court, it was barely mentioned in the judgment. The court failed to, or did not wish to, grapple with these issues. That is unfortunate.