Summary
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.
Factual background
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.
Held
- Claim allowed. The Council’s revised eligibility policy and implementation process were unlawful.
- 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.
- 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.
- 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.
- 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.
- 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.
The court’s approach to earlier authorities
Available to signed-in members.
Appellate history
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.
Key cases cited
20 authorities cited.
- R (on the application of McDonald) v Royal Borough of Kensington and Chelsea [2011] UKSC 33
- R v Gloucestershire County Council, Ex p Barry (Barry, Ex parte, R v Lancashire County Council, Ex p Royal Association for Disability and Rehabilitation, Royal Association for Disability and Rehabilitation, Ex p, R v Islington LBC, Ex p McMillan, R v Gloucestershire CC, Ex p Mahfood, R v Gloucestershire CC, Ex p Grinham) [1997] AC 584
- Savva, R (on the application of) v Royal Borough of Kensington and Chelsea [2010] EWCA Civ 1209
- McDonald, R (on the application of) v Royal Borough of Kensington & Chelsea [2010] EWCA Civ 1109
- Pieretti v London Borough of Enfield [2010] EWCA Civ 1104
- Domb & Ors, R (on the application of) v London Borough of Hammersmith and Fulham & Ors [2009] EWCA Civ 941
- Baker & Ors, R (on the application of) v Secretary of State for Communities & Local Government & Ors [2008] EWCA Civ 141
- Bapio Action Ltd & Anor, R (on the application of) v Secretary of State for the Home Department & Anor [2007] EWCA Civ 1139
- R v North and East Devon Health Authority, Ex p Coughlan [1999] EWCA Civ 1871
- JG & Anor v Lancashire County Council [2011] EWHC 2295 (Admin)
- W, R (on the application of) v Birmingham City Council [2011] EWHC 1147 (Admin)
- Rahman, R (on the application of) v Birmingham City Council [2011] EWHC 944 (Admin)
- Hajrula, R (On the Application Of) v London Councils [2011] EWHC 448 (Admin)
- Boyejo & Ors, R (on the application of) v Barnet London Borough Council [2009] EWHC 3261 (Admin)
- Meany & Ors, R (on the application of) v Harlow District Council [2009] EWHC 559 (Admin)
- Brown, R (on the application of) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin)
- Kaur & Shah, R (on the application of) v London Borough of Ealing & Anor [2008] EWHC 2062 (Admin)
- Chavda & Ors, R (on the application of) v London Borough of Harrow [2007] EWHC 3064 (Admin)
- R v Islington LBC ex p Rixon (1998) 1 CCLR 119
- R v Brent London Borough Council, ex parte Gunning (1985) 84 LGR 168
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Cases citing this case
8 later cases · 3 positive · 2 neutral · 2 caution · 1 negative
Most senior citing decisions:
- Anand & Anor v Royal Borough of Kensington And Chelsea [2019] EWHC 2964 (Admin) distinguished
- Hamnett v Essex County Council [2014] EWHC 246 (Admin) followed
- Bracking & Ors, R (on the application of) v Secretary of State for Work and Pensions [2013] EWHC 897 (Admin) considered
- Buckley & Ors, R (on the application of) v Sheffield City Council [2013] EWHC 512 (Admin)
- M and S, R (on the application of) v London Borough of Haringey [2013] EWHC 252 (Admin)
- Diedrick, R (On the Application of) v Hampshire Constabulary& Ors [2012] EWHC 2144 (Admin)
- Hunt v North Somerset Council [2012] EWHC 1928 (Admin)
- Williams & Anor, R (on the application of) v Surrey County Council [2012] EWHC 867 (QB)
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