D, R (On the Application Of) v Worcestershire County Council

A local authority may take available resources into account when setting eligibility criteria and choosing how assessed eligible care needs are met. Once eligible needs have been identified, however, the authority must make arrangements to meet them. It retains a wide discretion over the form of provision, subject to proper regard for the service user’s preferences, relevant guidance and available resources.

A consultation must provide sufficiently clear and accurate information to permit an informed response. An error will invalidate the process only where it is material and the consultation has gone clearly and radically wrong. The public sector equality duty requires a rigorous and conscientious consideration of the statutory equality objectives, but the weight given to them remains for the decision-maker.

The claimant challenged the Council’s policy determining the usual maximum expenditure for non-residential adult social care packages. The policy compared the cost of community care with the net cost of a suitable residential placement and applied principally to new or increased needs of adults under 65.

The claimant alleged that the consultation was materially defective because it did not explain the policy’s consequences sufficiently, and that the Council had failed to comply with its public sector equality duty under the Equality Act 2010. The Council also disputed the claimant’s standing and argued that the policy was not yet applicable to him. The court focused on the merits of the two procedural grounds.

1. Statutory framework. The relevant community-care legislation requires an authority to assess needs, decide whether services are called for and make arrangements for services that are required. Resources may be considered when eligibility criteria are set and when the authority chooses how assessed eligible needs will be met. Once eligible needs are established, the duty to make arrangements to meet them is absolute.
2. Discretion in meeting needs. The authority has a wide discretion as to the services provided, provided that eligible needs are met. Service-user preferences concerning outcomes and the manner of provision are material considerations. The authority may nevertheless choose a cheaper service that meets the particular needs and complies with its other policy obligations.
3. Consultation. The consultation materials adequately explained the policy’s central trade-off between individual choice and control and the need to reduce expenditure. They made clear that preferred packages might not be funded and that alternative ways of meeting eligible needs would be considered. The claimant’s argument depended on the erroneous premise that the previous resource-allocation system necessarily funded care in the cheapest possible way. The Council was not required to frame the consultation on that false premise or to state that users would necessarily face insufficient home care or residential care.
4. The consultation was capable of self-correction. Further information supplied during the consultation, including estimates of affected users and examples of exceptional circumstances, was circulated and published. The consultation period was extended. Any deficiencies alleged were neither material nor so serious that the process had gone clearly and radically wrong. Ground 1 therefore failed.
5. Public sector equality duty. The duty under section 149 required the Cabinet to have due regard to the statutory equality objectives. That required a conscious, rigorous and open-minded consideration of the relevant equality implications before or when the policy was adopted. It did not require the Council to take particular steps, achieve a particular result or give equality considerations any predetermined weight.
6. The Cabinet had adequate information, considered an equality impact assessment, received consultation material and understood that some disabled users might lose their first-choice package. The potential adverse impact was sufficiently obvious, and the authority’s proposed case-by-case reassessment and mitigation measures were relevant. The Council had due regard to the statutory duty. Ground 2 failed.
7. The judicial review claim was dismissed.