A legal challenge
against Worcestershire County Council implementing a 'maximum expenditure policy'
on social care has failed
In November 2012, Worcestershire County Council announced it would be
implementing a policy which placed a maximum cost on the amount they would pay
towards an individual’s social care requirements. This maximum was set at the
cost to deliver care in a residential care home.
In responding
to the consultation that Worcestershire carried out regarding the introduction
of this policy, Aspire pointed out that “care in your own home and care in an
institution is not comparable. If you are not comparing like for like, how can
you possibly compare the cost of the two systems?”
Aspire, local disabled people, and many others, are fearful that if it is
more expensive to receive the support at home than in a residential setting, people
could be forced into residential care. A Worcestershire resident known as D - a
17 year old who has a moderate learning disability and epilepsy, and
who will soon be accessing adult social care services - applied for a Judicial Review
of the Council's policy. The case against the Council was that in announcing such a policy
they had failed to review what its consequences could be and had failed
to comply with its public sector equality duty under section
149 of
the Equality Act 2010.
Despite ruling in favour of the Council, the judge did warn that:
“...in
exercising its discretion as to whether to allow greater costs than 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.”
So although there still remains fears about the consequences of this
policy, it is definitely welcome to have a high court judge state that such a
policy must not result in anyone being forced into residential care. This will
help provide weight to any future legal challenges if anyone is forced into
residential care as a result of this or similar policies.
The worries stretch beyond Worcestershire. There are concerns regarding
cuts to social care and the consequences regarding independent living across
the UK .
In 2011 an inquiry by the Joint Committee on Human Rights into Article 13 of
the UN Convention on the Rights of Disabled People received "considerable
evidence that disabled people’s right to independent living was beginning to be
severely thwarted by the funding situation in this country". The impending
closure of the Independent Living Fund (ILF) – another vital source of funding
for social care which allows people to live independent lives - is feared to
only add to this situation.
Aspire commissioned
research which clearly shows the detrimental impact on people
with SCI of living in institutionalised settings. Summed up by a research
participant called Harry, living in a non-independent setting “wrecks who you
are, totally wrecks you, strips you down to the bone, destroys you, takes away
your spirit, your independence, breaks you, just breaks you. It took away who I
am. I’m just another chicken on the production line. Pluck you, and then wrap you
up, and model you into what they want you to be – not who you are. It just
breaks you”.
It takes away an individual’s choice and control over their life,
creating a prison like environment, and also prevents them from having a family
or social life or being in employment. Because of this, we share the concerns of other
disability groups that a policy such as that of Worcestershire County Council
could result in people being forced to live in residential care.
We believe that disabled people’s right to have the same choices and
opportunities as non-disabled people is of paramount importance. We will be
watching the implementation of the policy and hope that Worcestershire and
other local authorities take seriously the judge's warning that Worcestershire
should act on its assurances "that no individual will be forced into
living in residential care, as a result of this policy alone".
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