Judicial review of Worcestershire's Maximum Expenditure Policy decision fails

...the Cabinet well-understood that the proposed policy sought to balance the Council's policy objectives of supporting disabled people to live full and independent lives within their local communities, and its obligations in relation to public expenditure; the policy sacrificing choice and control by service users to some degree, in favour of reducing public expenditure. That was its very purpose. [52]

Those of you worrying about Worcestershire County Council’s Maximum Expenditure Policy, which sought to cap the value that would be spent on a package of care at the cost of a residential care placement, will be disappointed to learn that a judicial review of the lawfulness of the consultation process for adopting this policy, has failed. This is disappointing for the claimant, who was motivated by concern that her son (who she said needed 24 hour support) would be left with residential care as the only viable support option, for others in Worcesteshire with similar concerns, and for those concerned that other local authorities may now be motivated to adopt a similar policy.  I have a thousand things to do this week so I can’t spend as much time blogging about this as I would like to, but I just wanted to observe a couple of things about the judgment. 

It is important to remember that this judgment - like other recent judicial reviews challenging cuts and policies which will impact negatively on people with disabilities - was not about the lawfulness of the application of the policy in any particular case, but the lawfulness of the procedure by which it was adopted.  This is one of the problematic features of judicial review as a means of challenge, it almost always focuses on the process of adopting a policy rather than its substance.

Readers may recall that the bone of contention between We Are Spartacus and Worcestershire, was whether some people would be effectively forced into residential care as a result of this policy because there would be no way of providing a support plan in the community which cost less. According to the judgment, Worcestershire continued to assert their claim that the ‘the Council will be able to work with service users who wish to reside in the community rather than a residential home to design a support package that meets their eligible needs in the community’, and this appeared to apply to all users [82]. The judge, however, did not entirely share this optimism, accepting that:

... in a particular case, despite Ms Clarke's confidence, it might be impossible to reduce the costs of domiciliary care in meeting a service users relevant needs to the equivalent costs of residential care; and I accept that the Council have not offered a guarantee that those will be treated as exceptional circumstances for a payment of costs in excess of the costs of residential care. [83]

Although the Council did not make this possibility explicit – either to those they consulted or to the Cabinet who voted on the policy – this did not appear to invalidate the consultation. It is somewhat difficult to discern in the judgment precisely why the judge felt this did not matter. Perhaps it is because he thought ‘these circumstances will not be common: they are likely to be rare’ [83]. Or perhaps he felt that if such circumstances arose, the Council would (should?) exercise its discretion to provide additional resources in view of its other policy commitments, as the tail end of paragraph 83 suggests:

Each case will, no doubt, depend upon its own circumstances; but, in exercising its discretion as to whether to allow greater costs that the residential equivalent, the Council will be required to take into account its own policy objectives of giving disabled individuals control and choice over their care support, encouraging disabled individuals to live independently in the community, and having less not more individuals in residential care. It will also be required to take into account its assurances during the consultation period – and in the course of this claim – that no individual will be forced into living in residential care, as a result of this policy alone.

But, nobody was ever claiming that a person would be forced into residential care as a result of this policy alone, it would always have been in connection with wider intersecting areas of law (in some cases, ‘best interests’ decisions under the Mental Capacity Act 2005), policy (including, but not limited to, the closure of the Independent Living Fund) and a person’s own circumstances (including not having any personal resources to ‘top up’ their support with and there being no alternative informal or voluntary sources of support).   The point is though, that without this policy, there may have been cases where the authority would have spent more on supporting people to remain in the community than they now would, with the result that those people had no other viable alternative except residential care.

The judge appears to have accepted the assurances of the Council ‘that it was not its intention that any service user be required to go into residential care as a result only of this policy’ [87], but of course, policies will have consequences which may not be intended, and this could be the consequence for some people if it were not possible to reduce their community support costs sufficiently (as the judge accepted might happen). The judge also stated ‘There is no evidence that, as a result of this policy, any individual has in fact been required to do so’ – this seems an odd point to make since the policy is a new one and the claimants would not, in any case, necessarily know if this had been its result for others.

The silver lining, for campaigners, is that the Council’s statement that it was not their intention that any persons would only be offered a package of residential care, and thereby be forced into residential care, may offer them a stronger ground of challenge should they find themselves in that predicament. This may even be what the judge intended when he stated that in deciding how to exercise its discretion in any individual case, the Council must ‘to take into account its assurances during the consultation period – and in the course of this claim – that no individual will be forced into living in residential care, as a result of this policy alone.’ Accordingly, the claimant's solicitors (Irwin Mitchell) had this to say:

“We welcome the guidance given by the Court that the Council must balance its other policy objectives when deciding how to implement their maximum expenditure policy. It is now over to the Council to prove that this policy will not in practice have the impact that we fear it will have.

“We will be watching carefully over the coming months as to how the Council is implementing this policy to ensure that their assurances given during the course of this case are adhered to. We would urge any individuals who do find themselves affected by this policy to come forward and take legal advice as soon as possible.”