JM & NT, R (on the application of) v Isle of Wight Council

Local authorities may set adult social care eligibility thresholds by reference to available resources, but they must use the statutory guidance framework and give clear, lawful reasons for any departure.

Eligibility criteria must assess the seriousness of risks to independence and well-being. They must not create a hierarchy of needs within an eligibility band, or introduce additional criteria based on the frequency, likelihood or immediacy of risk in a way that downgrades serious, fluctuating or long-term needs.

A public authority considering disability-related services must give substantive, rigorous and open-minded regard to the statutory equality duty. Consultation and equality impact material must provide sufficient evidence of the likely practical impact of the proposed policy.

The claimants, two severely disabled adults receiving community care services, challenged the Isle of Wight Council’s decision to restrict adult social care funding from April 2011. The Council proposed to continue fully meeting critical needs, while meeting only those substantial needs presenting the greatest risk of a person being unable to remain at home and safe.

The claim alleged breach of statutory guidance and failure to comply with the disability equality duty under Disability Discrimination Act 1995, s 49A. The challenge also concerned the risk-assessment tool subsequently used to reassess service users.

1. Claim allowed. The Council’s revised eligibility policy and implementation process were unlawful.
2. Under National Health Service and Community Care Act 1990, s 47 and the related community care legislation, the Council had to assess needs and decide whether they called for services. It could take resources into account when setting eligibility criteria, but it was required by Local Authority Social Services Act 1970, s 7(1), to follow the applicable statutory guidance unless it had good and adequately articulated reasons for departing from it.
3. The 2010 guidance required the Council to use the prescribed four-band framework. The Cabinet’s formulation prioritising needs connected with remaining at home and safety created an unlawful hierarchy within the substantial band. The guidance stated that, subject to limited exceptions, there was no hierarchy of needs.
4. The risk-assessment tool unlawfully added criteria based on frequency, likelihood and immediacy. Those criteria could exclude a critical risk because it was remote or fluctuating, and could place frequent substantial risks ahead of less frequent critical risks. This was inconsistent with the guidance’s requirements to assess the seriousness of risk and to consider needs over time.
5. The Council also failed to comply with the duty under Disability Discrimination Act 1995, s 49A. The consultation and equality impact assessment did not provide sufficient evidence about the numbers and types of disabled people affected, the likely detriment, or appropriate mitigation. Members therefore lacked the information necessary to give due regard to the statutory needs.
6. The Council’s risk-assessment tool was not merely administrative in effect: it materially departed from the policy considered by Members and introduced new eligibility criteria without the required scrutiny. The Council was required formally to amend the policy so that it complied with the guidance.

First-instance judicial review proceedings in the Administrative Court. Permission was initially refused on paper but granted after an oral hearing on 8 September 2011. The judgment itself records no earlier merits decision.