R (JM) v Isle of Wight Council

The claimants, two severely disabled adults, sought judicial review of the Council’s decision to raise the eligibility threshold for adult social care as a budget-saving measure. The court examined the Council’s compliance with the Secretary of State’s guidance (Prioritising Need, building on FACS) and the public sector equality duty in s.49A of the Disability Discrimination Act 1995. The court held that the Council’s formulation of the revised eligibility criteria (Version 3) introduced an unlawful "hierarchy of needs" contrary to the guidance and that the Eligibility Review risk-assessment tool impermissibly added frequency/likelihood criteria which downgraded fluctuating and long-term risks. The Equality Impact Assessment and the consultation were found to be inadequate for the purposes of giving the Council members the information required to have "due regard" under s.49A DDA 1995. The Council therefore failed to comply with the guidance and the statutory equality duty in important respects.

The claimants were two adults with severe disabilities who received community care services from the Isle of Wight Council. They challenged, by judicial review, the Council’s February 2011 decision to change its eligibility policy for adult social care (raising the threshold so that only "critical" needs would be fully met and only some "substantial" needs would be met) as part of a budget plan.

The application alleged (i) unlawful departure from the statutory guidance on eligibility (Prioritising Need and the Fair Access to Care Services framework) by (a) creating a hierarchy of needs within bands and (b) introducing criteria based on the likelihood and frequency of a need arising; and (ii) failure to comply with the public sector equality duty in s.49A DDA 1995 because the consultation and Equality Impact Assessment were inadequate and Members were not given sufficient information when deciding the budget and eligibility change.

The court framed the issues as whether the Council had lawfully adopted eligibility criteria consistent with the guidance and whether it had had due regard under s.49A when making its Cabinet and Full Council decisions. The court reviewed the statutory and guidance framework (including NHSCCA 1990 s.47, LASSA 1970 s.7(1), Prioritising Need and FACS) and relevant authorities on departure from guidance and on the equality duty.

On the first issue the court concluded that the wording adopted by Cabinet (Version 3) did create a hierarchy of needs prioritising risks relating to "remaining at home" and "being safe" over other categories identified in the guidance (such as involvement in work, education, social relationships and dignity), and therefore departed from Prioritising Need and FACS. On the second issue the Council’s Eligibility Review tool (Version 5) impermissibly introduced frequency/likelihood thresholds that could exclude even "Critical" risks if they were assessed as remote or infrequent, thereby downgrading fluctuating and long-term conditions contrary to the guidance. The court found the consultation materials and the EIA did not provide the evidence-based detail necessary for Members to assess the likely impact on disabled service users; nor was the later Eligibility Review the subject of adequate prior scrutiny. These defects meant the Council had not paid the required "due regard" under s.49A DDA 1995 when it approved the budget and policy.

The court also noted factual outcomes from the reassessments: approximately 75% of those previously assessed as "Substantial" were reassessed as "Critical," only a small number of existing users had services reduced or withdrawn directly because of the new eligibility policy and the immediate projected savings from reassessment proved to be far smaller than originally estimated. The judgment emphasised the need for the Council to amend the formulation of its eligibility criteria and to ensure proper evidence-based assessment and equality analysis going forward.