England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Sitting at: Birmingham Civil Justice Centre Priory Courts, 33 Bull Street, Birmingham, B4 6DS
		19/05/2011

Mr Justice Walker:

1. This case concerns the provision made for those with disabilities in the current budget of Birmingham City Council ("the Council"). The current financial year began on 1 April 2011, that is just over a month and a half ago. Two urgent applications for permission to apply for judicial review were lodged on 25 February 2011. Claim number CO/1765/2011 is brought by a disabled woman whom I shall call "W". Claim number CO/1772/2011 is brought by three other disabled residents of Birmingham whom I shall refer to as "M", "G" and "H". The two claims are identical in substance and directions in both were given by Beatson J on 2 March 2011. He directed a "rolled up" hearing in which the applications for permission and the substantive claims would be dealt with at the same time. He also made an anonymity order in respect of each of the claimants.
2. The rolled up hearing took place before me in Birmingham from 14 to 18 April 2011. Mr Ian Wise QC and Mr Stephen Broach, who appeared on behalf of the claimants, identified three grounds of challenge to the provision made by the Council when taking decisions to adopt (a) its Business Plan on 1 March 2011 and (b) its Adult Social Care policy on 14 March 2011. Those decisions involved a change in the eligibility criteria which determined, in relation to a particular need or needs, whether the Council would provide specific support to meet the need or needs in question. National guidance provided for needs to be assessed so as to place them into one of four bands of increasing severity – low, moderate, substantial or critical. Prior to 2011/12 the Council had provided support to meet those needs which were assessed to be either substantial or critical. The decisions under challenge approved a prospective change under which individual budgets would be funded only to meet those needs which were assessed to be critical. This prospective change was said to be unlawful as a result of:

i). a failure by the Council to have due regard to the disability equality duty pursuant to the Disability Discrimination Act 1995 s 49A

ii). a failure by the Council to 'ask itself the right questions' in the Tameside sense – a reference to what was said by Lord Diplock in Secretary of State for Education and Science v Tameside MBC [1977] AC 1014 at 1065B; and

iii). the consultations leading to these decisions (i) failing to comply with the common law standard for consultations established by the courts and (ii) breaching the procedural requirements of Article 8 European Convention on Human Rights.

3. Mr Andrew Arden QC, Mr Christopher Baker and Mr Sam Madge-Wyld appeared on behalf of the Council. They submitted that this is "a micro challenge to a macro decision". Thus the starting point for the Council's answer to the challenge is that the proposed change is a matter of high policy, while the complaints about it turn on matters that largely concerned "petty bureaucracy, at quite a low level."

Some features of the history of the claim

4. The lawfulness of the Council's approach to the provision it makes for the disabled is of acute importance not only to those residents of Birmingham who are disabled but to others as well. The hearing has rightly been treated as urgent, and has come on with great speed. The parties have had to take account of events occurring as they prepared for the hearing. Indeed the decisions now under challenge had not been taken when the claim began. Witness statements were prepared, other material was assembled, and skeleton arguments were lodged, all under considerable pressure of time. Counsel on each side provided the court with speaking notes, and Mr Wise provided a further note on 16 April 2011. These notes were of great assistance in enabling me to assimilate evidence and argument at speed, and I have drawn heavily upon them in the preparation of this judgment.

Permission to apply for judicial review

5. The case is now substantially different from its original form. In its current form it raises issues which merit careful examination. Accordingly I grant permission to challenge the decisions of 1 and 14 March 2011 identified above on the grounds set out in the claimants' speaking note and the further note of 16 April 2011.

The Claimants

6. The claimants are all severely disabled adult residents of Birmingham who bring these applications by litigation friends. Each has what Mr Wise describes as "a constellation of difficulties arising from disabilities." As recipients of adult social care services from the Council they all have a direct interest in the decisions challenged.
7. W is 65 years old and has learning disabilities and mental health needs. She lives in a residential home where she receives a package of care funded by the Council. A care plan prepared by the Council for W identifies many areas of daily living where she is at risk.
8. M is 25 years old and has a severe learning disability as a result of a genetic disorder. M currently attends college, but is due to finish in July 2011 and so will shortly need day centre provision or equivalent daytime activities. At present the only social care service M is receiving is residential respite care. The Council prepared an assessment of M in March 2008. This records his needs as being 'critical' in the area of "Autonomy and Freedom of Choice", but 'substantial' in the areas of "Health and Safety", "Managing Personal and Daily Routines" and "Family and Social Involvement". His mother states that it is not at all clear that M will be eligible for support under the Council's changed policy, and that if he were to be ineligible for day services the pressure on her would be enormous. Her witness statement describes how M follows her around at home all the time, using repetitive language. M needs constant supervision because he does not protect himself from dangers. He cannot go to the toilet on his own. There are also behaviour problems which will be exacerbated without any daytime service. It seems highly unlikely that there is an alternative resource in the community that could meet M's needs, particularly without any local authority funding.
9. G is 36 years old. She is not able to take care of her own personal needs and cannot protect herself from risk. She lives at home with her mother and father who are in their 60s and now think that it is time for their daughter to move into residential care. An amended assessment dated 26 April 2010 identified needs assessed as critical, substantial and moderate. Her epilepsy at night results in her needs in that regard being assessed as critical. By contrast she is assessed as having "substantial" needs in relation to her health and safety and managing personal and daily routines. These "substantial" needs relate in particular to her risk of harm to herself and others and inability to carry out the majority of her personal care or domestic routines. Her parents are concerned that support to guard against these risks will not be provided under the new regime and that the consequences of this for G's future care package are unclear.
10. H is 29 years old. He has a severe learning disability, autism, is profoundly deaf and has scoliosis of the spine. H has a wide range of complex needs and can present with challenging behaviour including smearing and eating his own faeces. H lives at home with his parents, an arrangement which depends upon the Council providing 92 nights of respite care annually. He has been assessed as having a mixture of 'critical' and 'substantial' needs, including 'substantial' needs relating to his requirement for daytime provision. H receives day care from an organisation known as SENSE 5 days a week. It is said to be particularly unlikely in H's case that there would be any alternative provision available for him in the community as he used to attend a day centre but there was an incident where he harmed another service user, and he has not attended a day centre since. He has been assessed as needing a staffing ratio of 2:1 to go out into the community. It is said that such a staffing level is only a realistic possibility if support remains funded by the Council.

State Provision for the Disabled

Support for the disabled during the period to 2007

11. The modern system for supporting disabled adults began at around the same time as the introduction of the National Health Service ("NHS"). The National Assistance Act 1948 created a duty to provide residential accommodation (s 21) and a duty to provide welfare services (s 29). The Chronically Sick and Disabled Persons Act 1970 ("CSDPA") provided greater specificity to the duties placed on local authorities to provide for disabled adults. The National Health Service and Community Care Act 1990 ("NHSCCA") introduced the concept of care in the community.
12. The legislation and guidance applicable in 2007 was described by HHJ Mackie QC in R (Chavda) v Harrow LBC [2007] EWHC 3064 (Admin). I have drawn on paras 3 to 8, 32 and 33 in order to give the account which follows.
13. The basic legal framework for community care services is as follows. Section 47(1) of NHSCCA 1990 states:

Where it appears to a Local Authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the Authority

(a) shall carry out an assessment of his needs for those services; and

(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services.

14. The full list of statutory provisions under which community care services are provided is contained in section 46(3) NHSCCA.. This list includes Part III of the National Assistance Act 1948, containing among other provisions s 29. It is primarily in the exercise of functions under s 29 that the Council's duties to the claimants arise: see s 2(1) CSDPA, which provides:

"where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely:-

(a) the provision of practical assistance for that person in his home;

(b) the provision for that person of, or assistance to that person in obtaining, wireless, television, library or similar recreational facilities;

(c) the provision for that person of lectures, games, outings or other recreational facilities outside his home or assistance to that person in taking advantage of educational facilities available to him;

(d) the provision for that person of facilities for, or assistance in, travelling to and from his home for the purpose of participating in any services provided under arrangements made by the authority under the said section 29 or, with the approval of the authority, in any services provided otherwise than as aforesaid which are similar to services which could be provided under such arrangements;

(e) the provision of assistance for that person in arranging for the carrying out of any works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience;

(f) facilitating the taking of holidays by that person, whether at holiday homes or otherwise and whether provided under arrangements made by the authority or otherwise;

(g) the provision of meals for that person whether in his home or elsewhere;

(h) the provision for that person of, or assistance to that person in obtaining, a telephone and any special equipment necessary to enable him to use a telephone,

then, … it shall be the duty of that authority to make those arrangements in exercise of their functions…."

15. When carrying out assessments of need and making service provision decisions local authorities have a duty to act under national guidance. The guidance applicable in 2007 was Fair Access to Care Services ("FACS"), issued by the Secretary of State for Health under section 7(1) of the Local Authority Social Services Act 1970 ("LASSA 1970"). As I shall explain, new guidance was issued in February 2010. However the new guidance cross-refers to FACS, and states that the original principles of FACS "hold firm." I shall accordingly use the present tense when describing FACS.
16. FACS notes at paragraph 14 that in general, councils may provide community care services to individual adults with needs arising from physical, sensory, learning or cognitive disabilities and impairments, or from mental health difficulties. At paragraph 15 it states that councils should use the FACS eligibility framework in order to specify eligibility criteria. Paragraph 16 explains that the eligibility framework is graded into the four bands mentioned earlier in this judgment (low, moderate, substantial or critical), and gives more detail of the criteria for each band. Although all local authorities are required to apply the criteria for assessing "presenting needs", FACS describes how different local authorities might reach different conclusions as to what band of needs will attract services as "eligible" needs.
17. FACS explains in paragraph 16 that, for the purposes of the eligibility framework, a person's needs are "critical" when life is, or will be, threatened; and/or significant health problems have developed or will develop; and/or there is, or will be, little or no choice and control over vital aspects of the immediate environment; and/or serious abuse or neglect has occurred or will occur; and/or there is, or will be, an inability to carry out vital personal care or domestic routines; and/or vital involvement in work, education or learning cannot or will not be sustained; and/or vital social support systems and relationships cannot or will not be sustained; and/or vital family and other social roles and responsibilities cannot or will not be undertaken.
18. FACS similarly explains that a person's needs are "substantial" when there is, or will be, only partial choice and control over the immediate environment; and/or abuse or neglect has occurred or will occur; and/or there is, or will be, an inability to carry out the majority of personal care or domestic routines; and/or involvement in many aspects of work, education or learning cannot or will not be sustained; and/or the majority of social support systems and relationships cannot or will not be sustained; and/or the majority of family and other social roles and responsibilities cannot or will not be undertaken.
19. In setting eligibility criteria councils have to take account of their resources, local expectations and local costs. FACS explains that councils should take account of agreements with the NHS and other agencies (paragraph 18) and consult users, carers and others (paragraph 20). Paragraph 12 of FACS has a specific reference to human rights and discrimination law, noting that when drawing up eligibility criteria for adult social care, councils should have regard to the Sex Discrimination Act 1975, the Disability Discrimination Act 1995, the Human Rights Act 1998, and the Race Relations (Amendment) Act 2000. Paragraphs 28 to 41 of FACS set out, with reference to other publications, general but detailed principles of assessment. Paragraphs 42 to 46 outline how eligibility for an individual should be determined following assessment.
20. A crucial statutory provision in the present case is Section 49A of the Disability Discrimination Act 1995. In 2007 it provided:-

49A General duty

(1) Every public authority shall in carrying out its functions have due regard to –

(a) the need to eliminate discrimination that is unlawful under this Act;

(b) the need to eliminate harassment of disabled persons that is related to their disabilities;

(c) the need to promote equality of opportunity between disabled persons and other persons;

(d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons;

(e) the need to promote positive attitudes towards disabled persons; and

(f) the need to encourage participation by disabled persons in public life.

21. The Disability Rights Commission ("DRC") has produced a statutory code of practice "The Duty to Promote Disability Equality" which must be taken into account by public authorities and the courts but does not have the force of law. The foreword to the Code explains that the imposition of the duty should end the discrimination which currently can occur when institutions fail to take into account the impact upon disabled people when developing services or policies. Paragraph 1.10 emphasises that equality for disabled people may mean treating them more favourably and paragraph 1.13 requires public authorities to adopt a proactive approach. Paragraph 2.34 considers "due regard" and its meaning, explaining that it requires public authorities to do more than simply give consideration to disability equality. The Code encourages a full impact assessment. Once an impact assessment has been carried out public authorities will need to consider changes to reflect its findings.
22. I add to the above account that FACS provided at paragraph 43 that "once eligible needs are identified, councils should meet them". It is common ground that an authority's resources are important when determining which bands of needs will be met but once a need is identified which falls within those bands then resource considerations cannot be a reason for declining to provide support to meet those needs: see R v Gloucestershire CC ex parte Mahfood (1995) 1 CCLR 7, confirmed by the House of Lords in the same case, by then reported as R v Gloucestershire CC ex parte Barry [1997] AC 585.
23. It is also common ground that it is unlawful to withdraw services following a change to an authority's eligibility criteria without a re-assessment, see Mahfood at (1995) 1 CCLR 16.

The position between 2007 and early 2010

24. Developments during the period between 2007 and early 2010 were described in new guidance which superseded FACS. The new guidance was published in February 2010 as "Prioritising need in the context of Putting People First: A whole system approach to eligibility for social care." I shall refer to it as Prioritising Need. Paragraph 3 explained:

3. Public funding for social care will always be limited in the face of demand and such resources as are available should therefore be allocated according to individual need in a way that is as fair and transparent as possible. There is evidence that in recent years, financial pressures have influenced local authorities to shift their focus towards those groups with the highest needs. Many councils have raised the level of their eligibility threshold, leading to concerns that some people who ought to be receiving support are now being ruled as ineligible. This is despite evidence indicating that limiting access through raising eligibility criteria has only a modest and short-term effect on expenditure.

25. Paras 4 and 5 added:

4. At the same time as many councils have been seeking to manage their resources by tightening eligibility criteria, a programme for the significant transformation of social care services has been put into place. ... Putting People First [a document describing cross-sector agreement and produced by HM Government in 2007] sets out a shared ambition for radical reform of public services, promoting personalised support through the ability to exercise choice and control against a backdrop of strong and supportive local communities. To broaden their focus beyond those with the highest needs, councils should ensure that the application of eligibility criteria is firmly situated within this wider context of personalisation, including a strong emphasis on prevention, early intervention and support for carers. In practice, this may mean councils making adjustments where necessary to ensure a seamless approach between their personalisation programmes and the determination of eligibility for social care.

5. Putting People First makes it clear that personalisation will only flourish where investment is made in all aspects of support for individuals and their carers including:

• Universal services – the general support available to everyone within their community including transport, leisure, education, employment, health, housing, community safety and information and advice.

• Early intervention and prevention – helping people live at home independently, preventing them from needing social care support for as long as possible and potentially creating future cost efficiencies.

• Choice and control – giving people a clear understanding of how much is to be spent on their care and support and allowing them to choose how they would like this funding to be used to suit their needs and preferences.

• Social capital – fostering strong and supportive communities that value the contribution that each of their citizens can make.

26. A parallel development was described in paras 12 and 13:

12. The Commission for Social Care Inspection ("CSCI") State of Social Care report 2006-07 noted the trend for councils to raise their eligibility thresholds and the potential implications for people seeking support. In light of these findings, CSCI was asked in January 2008 by the then Minister for Care Services to review the application of eligibility criteria and their impact on people. The subsequent report Cutting the Cake Fairly: CSCI review of eligibility criteria for social care was published in October 2008.

13. Recognising that some method to prioritise the limited resources available will always be necessary, Cutting the Cake Fairly makes several recommendations for making the implementation of eligibility criteria more equitable and effective. The future reform of the care and support system, following the Care and Support Green Paper, may have significant implications for the way in which social care is delivered. However, while longer-term options are being considered and debated, there are still important issues to address within the current system, as made very clear by CSCI's review, and it is for this reason that this guidance is now being issued.

February 2010 onwards: Prioritising Need

27. As noted above, FACS was superseded by Prioritising Need in February 2010. It built on the reform programme set out in Putting People First - promoting personalised support through the ability to exercise choice. Prioritising Need began with an executive summary including:

10. ... This shift in focus to community well-being and preventative approaches is also fundamental to the effective application of eligibility criteria. …[I]nterventions can prevent or delay people entering the social care system and therefore produce better outcomes for people at a lower overall cost.

11. The development of accessible and universal services will be vital for those individuals and their carers whose needs do not meet the council's eligibility criteria but who still need access to support in order to maintain their independence and well-being. In particular, everyone should be able to access high-quality information and advice to point them in the right direction for help.

28. At the same time Prioritising Need stressed that "despite significant developments in social care policy since 2003, … the original principles guiding the FACS framework still very much hold firm" (para 1). This was particularly so in relation to the principle that there should be one single process to determine eligibility for social care support, based on risks to independence over time. The concepts of 'presenting' and 'eligible' needs were retained (para 47), as were the four bands of the eligibility framework.
29. A section on 'Investing in prevention and well-being' included:

35. In Cutting the Cake Fairly, CSCI identified evidence that raising eligibility thresholds without putting in place adequate preventative strategies often leads to a short term dip in the number of people eligible for social care followed soon after by a longer-term rise. Councils should therefore avoid using eligibility criteria as a way of restricting the number of people receiving any form of support to only those with the very highest needs. Rather, they should consider adopting a strong preventative approach to help avoid rising levels of need and costs at a later stage. Early interventions can also improve general community well-being and wider social inclusion

36. ...[P]reventative strategies... ...might include the following:

...ensuring that people feel supported, included and able to participate in the community in which they live. It might include activities to address social inclusion such as luncheon clubs or befriending; healthy living advice and support; employment advice and support; physical recreation and leisure pursuits; community safety; housing support and transport.

Only a minority of these universal services will be funded through social care and...councils might therefore wish to consider investment in voluntary and community organisations which can deliver universal and open-access services.

... Promoting access to employment can be a highly effective way of improving social inclusion for disabled people. Councils should seek to ensure that disabled people can access high quality support and advice about employment which is appropriate to their needs.

Councils should be mindful of the important role of social care services for disabled and older people in helping carers maintain their own health and wellbeing. For example, Councils should ensure that the family is signposted to advice about flexible working, any support services available in the area and benefits advice about in-work financial support. ..."

30. Under the heading 'Response to first contact and assessment' the guidance included:

84. Councils may wish to consider encouraging those who can and wish to do so to undertake an assessment of their own needs prior to the council doing so. Although self-assessment does not negate a council's duty to carry out its own assessment, which may differ from the person's own views of their needs, it can serve as a very useful tool for putting the person seeking support at the heart of the process.

31. A subsequent section entitled 'Assisting individuals not eligible for social care support' included:

105. Undoubtedly, some people will not be eligible for support because their needs do not meet the council's eligibility criteria. In reaching such conclusions, the council should have satisfied itself that the person's needs would not significantly worsen or increase in the foreseeable future because of a lack of help, and thereby compromise key aspects of independence and/or well-being, including involvement in employment, training and education and parenting responsibilities.

…

108… It may well be that someone who is found ineligible following assessment may still benefit considerably from effective support planning and signposting to more universal sources of support such as aids or different housing options. If individuals need other services, councils should help them to find the right person to talk to in the relevant agency or organisation, and make contact on their behalf.

109. Councils should exercise considerable caution and sensitivity when considering the withdrawal of support. In some individual cases, it may not be practicable or safe to withdraw support, even though needs may initially appear to fall outside eligibility criteria. Councils should also check any commitments they gave to service users or their carers at the outset about the longevity of support provided. If, following a review, councils do plan to withdraw support from an individual, they should be certain that needs will not worsen or increase in the short term and the individual become eligible for help again as independence and/or well-being are undermined.

32. A section entitled 'Personalisation and support planning' introduced "person-centred planning", noting at the outset that where an individual is eligible for help the council should work with that individual to develop a plan for their care and support. The section then built on Putting People First which envisaged "the availability of personal budgets for everyone eligible for publicly funded social care support." At para 128 reference was made to the fact that many councils had begun to explore the use of a resource allocation system ("RAS") as a way of determining how much money a person should get in a personal budget to meet their needs. At para 129 the guidance said that "the aim of the RAS should be to provide a transparent system for the allocation of resources…".
33. Under the Equality Act 2010 a unified and extended public sector duty has replaced s 49A of the Disability Discrimination Act 1995. The relevant provisions, however, were not in force at the time of events giving rise to these proceedings. By or under the 2010 Act amendments were made to s 49A with effect from 1 October 2010. Neither side placed any reliance on them in oral argument and I need not set them out here.

The Council's "Transformation" proposals

34. Mr Peter Hay is the Strategic Director of the Council's Adults & Communities Directorate ("the A&C Directorate"). He explained that during 2006 the Council undertook work with the London School of Economics ("LSE") which identified that the Council's then current policies were not financially sustainable.
35. In April 2007 the Council established a Transformation Programme for the A&C Directorate. In certain respects this programme mirrored or anticipated the approach taken by central government described above. A "Revised Full Business Case for the Transformation Programme" ("RFBC") was issued on 20 May 2009. It identified three drivers for change: citizens' desire for independence and dignity; staff wanting to share the aims and objectives of the Putting People First agenda; and demographics, in particular the ageing population.
36. RFBC presented 3 options:

i). Maintain current budget and raise eligibility criteria;

ii). Fund the increased demand, estimated to cost £290m over 10 years; or

iii). Transformation through increasing services to self-funders and increasing community capacity which will result in an estimated saving of £230m. This would still require an increase in funding to maintain current levels of service.

37. The recommendation in RFBC carried forward the "personalisation agenda". What was described as the transformed Service Delivery Model would introduce a number of features, described in this way at para 1.2:

The identification of citizen vulnerability and assistance through predictive modelling;

The capability of self care through a web enabled access;

Initial support through a telephony based service;

A level of brokered support;

A specialist team supporting those citizens with high needs and high risk; and

The presumption is that self directed care is available at every level.

38. Section 1.3 of RFBC explained:

In order to deliver transformation we will:

Use greater choice and personalisation of services to drive out the inefficiency that is inbuilt within some of our current models of care. For example, current day care carries high fixed costs for very inflexible services;

Use self assessment and greater information about services to influence the way that the citizen spends their own money on social care. It is probable the market will gravitate to high cost/revenue provision like residential care. We will need to open other choices for self funders that in turn widen access to more services for all;

Develop approaches to using information intelligently to make proactive offers to citizens. For example using customer insight we can identify citizens who are providing informal care for their relatives and ensure that they are aware of the range of support services available. We want to start to be proactive rather than a service that is reactive to people at points of crisis;

Have to ensure that enablement approaches are used to reduce the costs that the individual or the city is paying for care by maximising the ability of the citizen to care for themselves. This can be achieved by initiatives such as making greater use of enablement in home care to improve functioning at home. Our use of intermediate care in the new care centres needs to show evidence of improved functioning for citizens and a reduced demand for high cost care; and

Have to encourage a more proactive approach to assistive technology so that we can improve the support to people at home and provide the reassurance to their carer. For example, citizens using new technology at home can adapt these systems to increase the care support available to them and to include vital monitoring data for health and social care needs.

39. RFBC thus fostered an approach which made use of RASs (as later described in Prioritising Need) and individual budgets (also later described in Prioritising Need).
40. One of the options considered at this stage was confining eligibility to critical needs only. This was rejected, it being thought that there would be funding for an increase over time in A&C Directorate spending of £6m year-on-year, so that by 2017-18 the additional funding would be £60m. The calculation made by the Council was that without "transformation", cost of care would increase during the period to 2018 by £290m. By contrast, with "transformation" it was thought that savings of £230m would be made. That left an increase in the cost of care over the period in an amount of £60m, matching the expected increase in funding.
41. In July 2009 an initial assessment of the impact of the proposed change to adult social care was put in hand. This took the form of an Equality Impact Needs Assessment ("EINA"). It is convenient at this point to turn to the Council's policy in relation to such assessments.

The Council's policy on EINAs

42. In December 2009 the Council produced a revised 'Corporate EINA Guidance Manual' ("the EINA Manual"). It was of general application, including but not limited to social care, and related to the range of equality duties found in the Disability Discrimination Act, Sex Discrimination Act and Race Relations Act. It described a process involving 2 stages.
43. Stage 1 concerned initial screening. Observations about it in the manual included:

Initial screening needs to take place for all new and revised policies and functions. …

It is a legal requirement that consultation takes place with appropriate stakeholders as part of the EINA process,

This [i.e. the screening stage] is the point at which you:

bring together all relevant information and "identify gaps" in the information available which already exists … [and] identify gaps in the information you have …

44. Questions were identified which needed to be answered at Stage 1. If the answers indicated that there were aspects of a proposed policy that might "contribute to inequality" or have a negative impact on particular communities, or that particular communities or groups were likely to have different needs, experiences or attitudes towards the policy, then it would be necessary to proceed to a full EINA.
45. The full EINA was Stage 2. It involved a 9 step process. Step 1 was a scoping exercise. Step 2 was involvement & consultation, while step 3 concerned data collection and evidence. Step 4 was entitled "Assessing impact and strengthening the policy." The task here was to determine if the relevant policy or function had a potential adverse or differential impact on, or failed to meet the needs of, specific groups or had discriminatory outcomes. A "differential impact" was defined as arising where different outcomes for one or more community, customer or employee group compared to another, or where a universal approach taken to the delivery of a service or function resulted in some people being affected differently. Step 4 added that an important part of the assessment was to consider whether there were ways of mitigating adverse impact, defined as either lessening the impact or providing some other remedy if it is not possible to reduce it. Examples of potential significant adverse impact were set out, including "eligibility criteria which disadvantages any groups".
46. Step 5 dealt with procurement and partnerships. Step 6 was entitled "Making a decision." It began with introductory paragraphs noting that the author of an EINA would need to reach a decision, and this decision "may need to be agreed by senior managers and/or Elected Members." It also noted that the author should "consult with your Directorate EINA Contact Officer", before finalising and implementing the action plan. The remainder of Step 6 included the following:

Your decision however will be based on four important factors:

The aims of the policy

The evidence you have collected

The results of your consultations, formal and informal

The relative merits of alternative approaches

…

You should also consider the following:

Does the assessment show that the proposed policy will have an adverse impact on a particular equality group or groups?

Is the proposal likely to make it difficult to promote equal opportunities or good relations between different racial groups?

If the answer to both these questions is 'yes', can the policy be revised or additional measures taken, so that it achieves its aims, but without risking any adverse impact?

47. Step 7 concerned the identification of arrangements for monitoring, evaluating, reviewing.
48. Step 8 concerned action planning and Step 9 concerned sign-off. Step 8 needs to be set out in full:

The whole point of carrying out equality impact needs assessments is to identify better ways of delivering services so that all communities can benefit from them as they need to.

The real value of completing an EINA comes from the actions that will take place and the positive changes that will emerge through conducting the assessment. The completion of the Action Plan will draw on the outputs and responses emerging from Steps 1-7.

In order to ensure that agreed actions are taken forward, the actions from this plan need to be added to your service/business plan, so that they can be tracked and mainstreamed. Periodic checks must be undertaken to ensure that quality assurance is maintained and actions delivered.

You should not wait until you write your next service area plan to do this. The action planning should be in accordance with current guidance on service planning and follow the SMART convention of being:

Specific

Measurable

Attainable

Realistic

Tangible

The action plan contains sections covering:

Involvement and Consultation

Data Collection and Evidence

Assessment and Analysis

Procurement and Partnership

Monitoring, Evaluation and Reviewing

A reference number should be applied to each action identified. All actions should list a proposed target date and the person responsible for delivery. The Directorate EINA Contact Officer should be assigned from the Directorate for quality assurance purposes.

A copy of the completed action plan should be submitted to your Directorate EINA Contact Officer for monitoring and information.

Developments in the period to autumn 2010

49. Mr Paul Dransfield is the Council's Chief Financial Officer and Strategic Director of Corporate Resources. He explained, among other things, that by autumn 2009 it was apparent that, following the expected general election in May 2010, any new government would make very significant expenditure savings from 2011 onwards. A number of developments led to further changes in expectations as to resources for this period. A major role in the consideration of these developments was played by the Council's Corporate Management Team ("CMT") comprising leading officers, and its Executive Management Team ("EMT") comprising Cabinet Members, representatives of Scrutiny Committee Chairs, and the CMT. At a meeting of the EMT in January 2010 estimates of the scale of the spending reduction were set out for Council members so that they could endorse some early preparation for the 2011/12 budget. Various "work streams" were commissioned to seek to cut administration costs and improve efficiency.
50. Mr Hay records that a business plan prepared in February 2010 suggested a total of £57.9m reductions for the authority as a whole.
51. The general election took place in May 2010 and in June 2010 the new coalition government produced an emergency budget. Two EMT "Awaydays" were held in June 2010. By then officers were "confidently predicting" that the Council would face a reduction in grant of approx £330m p.a. over the next 3 to 4 years. By contrast, Mr Dransfield explained, the best that the work streams could produce amounted to a total of £90m p.a. of savings over the same period. Consistently with the Council's Sustainable Community Strategy, the Council had developed policy priorities in which equalities considerations had played an important part. At the head of these priorities was "protecting vulnerable people (children and adults)".
52. Mr Dransfield's first witness statement explained the outcome of the June meetings at paragraphs 49 to 52:

49. Of course, we had to look at services themselves. The framework that was set in June 2010 was based on the achievement of priority "outcomes". Public spending buys staff time, property, IT, goods and services. These are combined through different public agencies using management resources and process design to produce service interventions. Services interventions hopefully impact on people to produce better outcomes for individuals, families and communities. Traditionally, efficiency processes concentrate on buying the "inputs" more cheaply (or better quality) and reducing the demand for inputs by more efficient processes. The City Council has already delivered a significant level of savings over many years in this way. However, in contrast, and given the scale of the financial challenge now faced by local authorities, what was now required was a more selective set of "outcomes" (i.e. concentrating on the priority outcomes described above) and a choice of service interventions that were more effective in producing those outcomes. Services that did not support priority outcomes needed to stop. Within services that did support priority outcomes, those that were more effective needed more investment whilst those less effective should be reduced or stopped. Inevitably, this would lead to outcomes being achieved in different ways from the traditional approach, and this would lead to service delivery being redesigned.

50. At the June 2010 EMT Awaydays, Members agreed that officers should work at the remodelling of services along the lines of the principles (above, para.47) designed to protect the priority outcomes. Throughout the summer and autumn, extensive work on these options was carried out. At the same time, staff and the public were informed about the Council's intentions. The Chief Executive presented these issues at a number of seminars and roadshows as I and other colleagues also did.

51. The Council's approach to developing savings proposals for Member consideration was a combination of, on the one hand, a top-down approach to setting targets, within which services would have discretion to produce specific proposals in accordance with the Council's policies and priorities, and, on the other hand, cross-cutting budget reductions based on specific projects or initiatives which impacted across the whole Council. This was a similar process to that used the previous year. However, given the scale of savings that need to be made, this could only be achieved by all services contributing.

52. In order to provide clarity, and to ensure that as much time as possible could be allowed for the evaluation and planning of the significant changes which would be required, it was essential that these savings targets were issued as early as possible in order to provide services with budgetary certainty. An alternative approach of considering individual savings proposals and building from the bottom up would have resulted in a far more complex and prolonged decision-making process as the Council struggled to ensure that it delivered the level of savings needed. That approach to the process would have been time-consuming, and would pit departments and services against each other, as each (entirely legitimately) asserted its importance to the Council or the community or its customers; the top down approach may appear to be crude or "rough justice", and doubtless does so from within each area of need, but - while always recognising the need to comply with statutory duty - it would not have been workable given the Council's size and the scale of its financial challenge, within any acceptable period of time, and it is not irrational to start with the proposition that each area must find its own proportion of the global savings needed (allowing adjustment if necessary, e.g. to comply with statute). Thus, the process of setting the overall budget started from the perspective of each service meeting its fair share of the savings required, while subsequent policy decisions on resource allocations resulted in the overall impact varying from service to service in accordance with local priorities or requirements, i.e. it was never any more than a starting-point.

53. Mr Hay explained that the A&C Directorate held a strategic planning day in July 2010, when it was thought that the funding gap for the A&C Directorate would be £43m for 2011/12 and £90m by 2014/15. On 4 August 2010 the Council's Chief Executive set saving targets for all directorates; as regards the A&C Directorate the savings targets were £36.9m for 2011/12 rising to £87.8m by 2013/14. At a meeting on 13 September 2010 it was made clear that there could be no exemption for adult care from reductions in budgets. However, in recognition of the need to invest in meeting the costs of demographic pressures there would be an increase each year of £6.466m in the base budget for the A&C Directorate against which the scale of necessary reductions would be assessed.
54. The government's Comprehensive Spending Review was announced on 20 October 2010. On the same day the Department of Health announced an additional £1bn to be provided to councils to support social care and up to £1bn to the NHS to support social care. When revenue grants from all departments were included the overall reduction in revenue funding to local authorities would be 26%.

2010 Consultations

55. Proposals for two consultations were taken forward in late 2010 and early 2011. They concerned the Council's arrangements for Adult Social Care and the Council's Business Plan (i.e. its budget).
56. On 8 November 2010 the Council at a meeting of Cabinet approved a consultation on allocation of resources to individual A&C Directorate service users and the introduction of a Universal RAS. A public report for the meeting explained that the Universal RAS proposed to treat all service users the same regardless of client group (e.g. learning disability or physical disability). It was proposed to introduce this new system on 1 April 2011. The new system was said to be key to the management of demographic pressures on the A&C Directorate budget in future years. It would also better meet the needs of citizens and improve outcomes. Papers before the Cabinet included, at Appendix 1, an "Initial Screening Pro Forma for Equality Impact Assessment." It was explained in para 3.3 of the public report that a key aim of the proposed consultation was to gather evidence from a wide audience of stakeholders to allow for the EINA to be refined. Appendix 1 identified a number of questions and answers. Question 11 was. "Are there any criteria/requirements or aspects of this policy that could contribute to inequality?" The answer given was "No." This was followed by an explanation of what the Transformation programme would do, the development/design of specific delivery for each service, and the timing of equality impact assessment "checkpoints." The Council's proposals at this stage did not include a change to limit eligibility to critical needs only.
57. Very shortly afterwards the Cabinet was advised of a range of further proposals to be considered at EMT "Awaydays" on 18 and 19 November 2010. These proposals included the ending of provision for needs assessed as "substantial" with funding being restricted to only those needs which were assessed as "critical". At the "Awaydays" the EMT had a report dealing with the impact of this and other cuts in services. It was prepared by Mr Mashuq Ally, Assistant Director, Equalities and Human Resources, and was stated to be relevant for all Cabinet members. Relevant parts of the report included the following:

3. Background

Given the scale of the financial challenge Birmingham faces and the subsequent effect of budget reductions on services it is unfortunately inevitable that despite the best efforts of Members and officers to prevent this, there will be major adverse consequences for the people of Birmingham. This report recognises that this is the reality and seeks to support the decision making process by outlining as far as possible what these consequences are likely to be.

The ability to predict the impact of the cuts to any specific degree is almost wholly determined by the level of detail available in the directorate proposals themselves. Whilst their financial detail is fairly firm, what this actually means for individual services is, in a number of instances, understandably much less certain at this point as efforts to mitigate impact continue and Members are yet to make final decisions. Consequently the following section on the impact to service users is necessarily high level and generalised at present, although it should be possible to refine and focus this in due course as required. This report seeks to be proportionate, focussing most on those areas where the impact of cuts is likely to be greatest.

Similarly Section 5 on the consequences flowing from the job losses to council staff is based on high level estimates of numbers rather than agreed figures, and again this can be adjusted as more detail becomes available. A good deal of work has already been done in this area, particularly the NICE CMT Social Impact of the Recession Index and work by BCC Economic Strategy on the economic implications for Birmingham of the Comprehensive Spending Review, and this section is heavily informed by these.

4. Social Consequences To Proposed Cuts in Service Delivery

Adults and Communities Directorate

It is recognised that Adults and Communities face particularly intense pressure from a combination of the budget savings required and increasing demographic pressures from an aging population, and that this pressure has forced a series of unpalatable decisions to be made. Unlike universal services, Adults and Communities are focussed overwhelmingly on the most vulnerable people in the city and therefore any savings will inevitably have significant consequences which will have to be very carefully managed.

The greatest impact arising from the Adults and Communities proposal will be around the ending of provision of services to those users classified as having substantial needs with funding being restricted to those with critical needs only…

…

The removal of services from those with substantial needs will potentially have the following impacts in Birmingham as elsewhere:

Increased reliance on families/informal carers to meet basic needs around personal care and hygiene along with domestic tasks such as cleaning and shopping with consequent increased stress for both carer and recipient of care

Where no or inadequate family/informal support is available then basic needs are likely to go unmet leading to neglect and potential for needs to escalate to critical level

Increased isolation and loneliness of those with substantial needs potentially leading to increased depression and mental illness

Increase in safeguarding issues as risk of abuse increases over time, leading to potential for needs to escalate to critical level.

In addition for those with critical personal care needs there will be restrictions on the support to meet social needs that is provided, leading to some of the same problems as identified above.

It is very likely that in some cases the removal of services will be met with hostility by the service users themselves and/or family members and informal carers, compounding existing levels of stress amongst social work professionals and with them associated issues around sickness and staff retention.

The impact of this change will not be felt evenly across the city. The most recent data from CareFirst shows that there are over 4,700 adults classified as having substantial care needs and their geographical distribution is shown in the map below. Whilst residents in all wards will clearly be affected, the concentration is highest in Brandwood, Shard End, Sheldon and Acocks Green. Due to the demographics of those in need of adult social care and in particular the link between increasing age and increasing need for care, the removal of funding for substantial needs will have a disproportionate effect on those aged 65 and over, female and of White or Black ethnicity. There are currently 1500 people with substantial needs who are aged 85 or older.

58. On 30 November 2010 the Council published a consultation document on its Business Plan 2011/12 – 2014/15 ("the November Business Plan Consultation"). A section on responding to the consultation said:

We will seek to consider all responses received before March, however it would be very helpful if comments could be sent by 17^th January 2011 so that these can be fed into early discussions on the proposals.

In addition to this overarching consultation, individual Directorates are consulting affected parties about proposals for specific service areas. You can find details of our consultations at the website above.

59. A foreword from the Chief Executive stated that the Council anticipated needing to make a total of £300 million in savings over the next four years. Section 2 of the paper was entitled "Birmingham's budget." It noted that the Council spent around £3,550 million per year of which £380m was on adults and communities. It added:

The council does not have full freedom to decide how to spend this money because much of it is given by central government as "ring-fenced" grants or has other statutory constraints. This means, for example, that certain funds can only be spent on schools, benefits payments, or on council housing. These constrained grants account for around half of the Council's spending, so any general reductions can only be delivered from the remaining half.

The remaining "non ring-fenced" areas include Adults and Communities; parts of Children, Young People and Families; Leisure, Sport and Culture; Local Services and Community Safety; Public Protection; the Housing "general fund"; Transport and Regeneration and Constituencies.

60. Section 3 of the November Business Plan Consultation was entitled 'Our approach to delivering the required savings'. It noted that the Council Plan 2010 had set out the Council's 'immediate priorities', the first of which was 'Protecting vulnerable people (children and adults)'. It explained in detail how seven principles had informed the approach to delivering the required savings. These principles were:

1. Transforming our efficiency

2. Preventing problems to avoid big costs later

3. Reducing dependency and enabling self sufficiency

4. Collaboration between service areas and public agencies

5. Personalisation such as moving to individual budgets giving more choice to service users

6. Maximising income streams

7. Levering in funds from the private sector.

61. Section 4 was entitled 'Draft proposals' for service areas. Before turning to specific service areas it stated (among other things):

Our initial proposals started from a position of "equal shares" of the savings target for each of our strategic directorates, but modified in line with policy priorities …

62. Under the heading "Adults and Communities" the November Business Plan Consultation described a "new offer":

It is proposed that the Council will have a new service offer based on the premise that the vast majority of people can contribute through their own resources and skills to the "care system".

Our new offer is proposed to consist of….

-Better universal access to information, advice and signposting.

- Improved preventative services to keep people out of care.

- A funded service for only those of low means whose personal care needs are critical.

- A more integrated enablement and preventative service with Health.

Our proposed new offer is based on two outcomes

- Quality of Life: We exist to ensure the quality of life of ALL citizens –today, tomorrow and always. This is a new offer for an existing outcome.

- Health: We exist to assure the health of our citizens through a single approach to health and care and to meet the strategic ambitions of a world class city.

63. Adding that the "new offer" was "based on the new landscape", the November Business Plan Consultation continued, by reference to a diagram, as follows:

…our different interventions (universal information, rapid access support to carers, prediction and prevention) would seek to maintain people's quality of life. At all stages we will seek to enable (and re-enable) people to maintain high quality independent living as far as possible. Where necessary, we will provide further core support to some citizens.

64. Before setting out a summary of the position in relation to "Adults and Communities", the remainder of this section was as follows:

So we propose to use the new money to deliver change:

To develop capacity so that the reductions in funding can be managed by new approaches.	'Smoothing'
To make sure that the community and third sector receive investment to support a greater role	'Investing in capacity'
To deliver financial benefits for health and care by doing things very differently.	'Productivity'

We are seeking to protect investment in care, but using it to create a different approach to care.

In summary our proposition is:

a) The care system isn't sustainable even with all the changes we have already completed. We accept the Government's argument for more engagement of people and communities in creating a new system.

b) We need to create a new way of providing care and we won't do that if we try to hold together an already stretched system.

c) We want better quality and a system that stays within its budget.

d) Alongside the Council's financial position, the NHS will face challenges and an integrated use of money offers a real opportunity of a new "whole system" approach benefiting Birmingham people.

Important elements of this approach would include:

- Reviewing how assessment, support and enablement services are delivered

- Consulting on further savings in the unit costs of care

- Reviewing the needs of service users and looking to identify ways in which families and communities could better help meet social needs

- Supporting the community and third sector to build capacity to support local people

Whilst meeting its corporate savings target, Adults will benefit from re-investment of the Government's additional funding for health and social care over the next four years.

65. A table headed "Summary of proposed savings" listed 6 heads under which the A&C Directorate would achieve savings totalling £106.9m by 2014/15. The first of these heads, proposed to save £33.2m in 2011/12 and £69.1m by 2014/15, was described in this way:

Restrict the use of City Council funded care to "critical" personal care only. Communities, the voluntary sector and others will be engaged to provide support beyond this threshold to sign post citizens to services that meet their care needs. This new approach will engage the market on a more radical reshaping of City Council funded services including the scope to commission regionally and/or more joint arrangements.

66. On 2 December 2010 the Council launched its consultation document on the future of adult social care ("the December ASC Consultation"). The consultation period was to finish on 2 March 2011. An opening section stated under the heading "Additional information" that the document was "part of a wider consultation by [the Council] on its Council Business Plan 2011/12-2014/15" launched on 30 November 2010. Under the heading "Adult social care services now and in the future" it explained perceived advantages of "personalisation." Under the heading "Background information about reductions in funding" it estimated that by 2014/15 adult social care funding in Birmingham would need to make savings of approximately £107m.
67. Section 2 dealt with the proposal to move to a universal RAS. Under the heading "The way we assess people's needs" it included the following:

What happens at the moment?

At the moment we use a paper Self-Assessment Questionnaire to find out about people's adult social care needs.

Our proposal – self assessment using Quickheart website.

We think an effective way of delivering a Universal Resource Allocation System (RAS) would be to fill in a Self Assessment Questionnaire on a new website using computer software created by a company called Quickheart.

Quickheart's computer software is being used by a number of local authorities in England, for example Stockport and the Royal Borough of Kensington and Chealsea. The website has user-friendly pages to help people identify their social care needs in a straightforward way.

…

We are proposing to use a Birmingham Quickheart website to ask the types of questions that we currently ask in our Self Assessment Questionnaires.

68. Section 3 was entitled "Delivering adult social care services with reduced funding." It stated:

What are our options?

The current forecast indicates that the Adults and Communities base budget will be reduced by £107m by 2014/15.

The Government will be giving us some new money to help minimise the impact of the budget reduction. We estimate this is around £30m (2011/12) to cover a £40m savings requirement.

We accept that with efficiency from us we have an option to use this money for a standstill position. We welcome the Government's recognition of the importance of adult social care and want to build on this opportunity.

We can either:

Option 1) – Use the new money (£39m per year by 2014/15) to ease the reduction of adult social care funding (£107m per year by 2014/15), or in other words carry on what we do now.

Even with the new Government money, we estimate there will be a shortfall of around £10m in the next financial year (2011/12), meaning that we could consider this as a short-term option to provide slightly less of the same services next year.

We are proposing to reject that option for two main reasons:

a. Even if we were to receive the full allocation, this doesn't stretch over the financial gap which is increasing year on year to £107m by 2014/15. It does not consider the financial position of local primary care trusts in the NHS.

b. We want to continue to develop new approaches to providing adult social care services including giving people and communities more power and control.

Option 2) – Use the new money to create a new service 'offer' for people who need adult social care services that is done in partnership with health services.

The new 'offer' is based on the Council's commitment to achieve two outcomes for adult social care:

Quality of Life: We exist to ensure the quality of life of all citizens –today, tomorrow and always.

Health: We exist to assure the health of our citizens through a single approach to health and care and to meet the strategic ambitions of a world class city.

Our proposal – Option 2

We want to make a new offer (changing to a new model of adult social care) that delivers efficiency and quality, building on the Department of Health's 'Vision for Adult Social Care'.

We are proposing a new service offer based on the vision that the vast majority of people can use their own resources and skills to contribute to meeting their adult social care needs.

Our proposed offer is to provide:

Information, advice and signposting available to everyone, fostering strong and supportive communities that value the contribution that each of their citizens can make;

Preventative and enablement services –to keep people as independent as possible for as long as possible;

Individual budgets for people whose personal care needs are critical*, based on a Universal Resource Allocation System, and subject to financial assessment; and

Closer working with Health to keep people out of care and help them stay independent in their own home.

We recognise that this proposed offer in funding could create real anxiety, particularly for some of the most vulnerable adults in our community.

Our commitment is to find new ways to meet needs that work effectively, and that can be sustained. We know we do this best when we design care with people.

Our proposals to invest the new money will fall into three broad categories:

'Smoothing' – to develop capacity so that the reductions in funding can be managed by new approaches.

'Investing in capacity' – To make sure that the community and third sector receive investment to support a greater role.

'Productivity' – To deliver financial benefits for health and care by doing things very differently...

We are seeking to protect investment in care, but using it to create a different approach to care.

[Three consultation questions were then set out.]


*For the Government definition of critical see the Glossary – Table 3 Eligibility criteria bands 2010…

69. Sections 4 and 5 respectively provided information on how to take part in the consultation and a glossary. Included in Section 5 was Table 1, setting out a breakdown of what the Council proposed for the A&C Directorate's budget from 2011-12 to 2014-15. This listed six heads similar to those in the summary table set out in the November Business Plan Consultation. The first head repeated the figures of £33.214m saving in 2011-12 and £69.101m saving by 2014-15, against an entry in these terms:

1. Restrict the use of City Council funded care to 'critical' personal care only.

2. Communities, the voluntary sector and others will be engaged to provide support beyond this threshold to signpost citizens to services that meet their care needs.

70. The Council's evidence was that its overall approach for the A&C Directorate was to take forward the transformation programme, increasing the emphasis on prevention, enablement and signposting, in substitution for the provision of a personal budget where possible. The aim was to combat the phenomenon that fewer and fewer people were being assisted at a greater and greater cost. As explained by Mr Hay at paras 36 to 39 of his first witness statement:

36. Under the existing model (both locally and nationally), despite budgets having grown annually, the number of people actually served had been reducing over the years in a spiral of increasingly costly care provision managed by a combination of eligibility criteria and rationing. Option 1 would see the Council reducing still further the number of people served, in practice focusing most on those with the highest needs, but with no or inadequate money – except the additional funding for enablement - to provide for any wider priorities such as integration with the NHS in respect of the very large proportion of people who needed assistance but who were not receiving social care support.

37. We were seriously worried about the potential implications and impact of this, for the following reasons.

(i) A model concentrating solely on eligibility would continue to hold back work with the broader population particularly by the provision of information designed to assist people in helping themselves and/or (where necessary) finding support. There would be no offer at all to help those with lower levels of need; nor would there be any offer to help people with the efficient and effective use of people's own resources. This was very significant for us. The earlier work with the LSE had demonstrated that ignoring self-funding (i.e. failing to help people make the best use of their own resources) was a perilous course because of the inexorable, projected rise in residential care. If we did not undertake this role, we could neither encourage the market to make offers to support people in and around their own homes, nor could we in that respect and otherwise influence prices.

(ii) The lack of integration with the NHS would rebound on people at significant points of crisis, with no real offer to people across care and health.

(iii) There would be a continuation of wasteful practices by ignoring schemes that could prevent needs getting worse and costs rising. For 2010/11, only £1.5m of total spending of £297m (0.5%) was on preventative schemes.

38. I want to stress that the choices are not simple. Sustaining (or, rather, trying to sustain) the existing approach would inevitably mean a continuing reduction in the number of people served without making any provision for those who are excluded. This is deeply prejudicial to those with lesser needs but who do need some help. What is needed - and would have been needed even without the current pressures - is to recalibrate our approach, so as to (on the one hand) reduce the number of people to whom services are directly offered or for whom they are provided with the funding to acquire them, while (on the other) building up expertise and resources to allow an increased number of people to support themselves (in whole or part) through other mechanisms, including the better use of their own resources and access to other sources of support.

39. ... Pulling together all the work that we had done, the conclusion we reached was that we could do better for that part of the community we serve than the 'less of the same' under Option 1, by paying more attention to (and investing more in) prevention, enablement, and mechanisms for helping people to access means of support other than direct provision, or directly funded provision, by the Council. Option 2 is not just about limiting long-term such provision to critical needs but also about developing other forms of assistance for those with lower levels of need.

71. Mr Charles Ashton-Gray joined the A&C Directorate in 2004, and became Strategic Performance & Engagement Manager in the Directorate in the summer of 2010. In a witness statement he said that the December ASC consultation necessarily struck a balance between clarity and conciseness: "too much information can confuse." Overall, he considered it was clear what was being proposed, and why, and what issues consultees were being asked about. His witness statement continued:

7. The new offer contained in the consultation was a broad proposal rather than a fully articulated policy. We had not defined or pre-determined what the outcome of the consultation would be. Moreover, there were details and strategies necessarily still to be worked up which it was simply not possible to identify and define at the time of the consultation; we were not consulting in relation to matters of that level of practical detail so much as the broader objectives necessary to respond to the spending cuts, the challenges of which were unprecedented and imminent and in relation to which no-one had identified any viable alternative. Accordingly in the foreword to the consultation document, the Strategic Director, Peter Hay, stated: "[W]e accept that there are parts of the offer that are uncertain and untested".

December 2010 and January 2011

72. Mr Ashton-Gray records that as regards adult social care approximately 1,700 people attended briefing sessions and 841 people completed questionnaires. Representatives of the Council attended a number of meetings in this regard. One such meeting took place on 6 December 2010, a carers forum organised by the Birmingham Carers Association. It was attended by a number of representatives of the Council. A note of the meeting records that the Chair of the Birmingham Carers Association told the Council representatives that carers were anxious to know what the "critical" category covered, and asked, "What do you term as critical?" The response was that Mr Hay would be issuing guidelines on what "critical" meant, and the Council would let the Association know when this was available.
73. At a number of public meetings in January 2011 a Powerpoint presentation was made by the Council. It included a slide which showed the Council's "best guess" as being that in 2011/12 they would receive £6.0 million in the form of "Share of Enablement funding (NHS money)", and £15.4 million described as "Funding from NHS to support social care services for the benefit of health" in 2011/12, a total of £21.4 million. The slides gave an account of savings proposals divided into three sections:

(1) Section (1) identified a first head of savings which, as with the first of the previous six heads in the November Business Plan Consultation and the December ASC Consultation, would achieve savings in 2011/12 of £33.2 million and savings by 2014/15 of £69.1 million. The description of this head was as follows:

A universal service providing information, advice and signposting that prevents people needing care in the first place and is more joined up with Health.

An Individual Budget for people with low incomes/savings whose personal care needs are defined as critical under the revised eligibility guidance.

(2) Section (2) identified two more of the previous six heads listed in the November Business Plan Consultation and the December ASC Consultation. These two heads, when combined, would achieve savings of £2.1 million in 2011/12 and £25.9 million by 2014/15.

(3) Section (3) set out the remaining three of the previous six heads, making up the balance of the £40.5 million of savings previously identified for 2011/12 and £106.9 million previously identified as to be achieved by 2014/15. However section (3) also set out a seventh head, described as "Reduction in grants rolled into overall allocation." This seventh head would achieve savings in 2011/12 of £2.4 million, and savings by 2014/15 of £6.3 million. Thus the overall total of savings envisaged in the slides presented in January 2011 was a sum of £42.9 million in 2011/12 and £113.2 million by 2014/15.

74. In mid January 2011 there was correspondence between Public Law Solicitors (who act for M, G and H) and the Council. Among other things, in that correspondence Public Law Solicitors challenged the proposed move to "personal care critical only".

February 2011

75. In February 2011 the Council received a consultation response from Sense, a national charity that supports and campaigns for children and adults who are "deafblind" and provides council-funded services. The consultation response explained "deafblindness" as a combination of both sight and hearing difficulties, and that Sense provides expert advice and information as well as specialist services to deafblind people, their families, carers and the professionals who work with them. It also explained that Sense supports people who have sensory impairments with additional disabilities. After noting that the most common cause of deafblindness is older age, the Sense consultation response turned to the Council's proposal that there should be a funded service for only those of low means whose personal care needs were critical. It was apparent from the response that Sense interpreted this to have two different elements. The first element which Sense identified was that the Council proposed to support personal care only. Among other objections to this first element, Sense pointed out that it was not in line with statutory guidance. Prioritising Need stated expressly that needs relating to social inclusion and participation should be seen as just as important as needs relating to personal care issues, where the need fell within the same band. Sense added that failure to meet critical needs not related to personal care might also be in conflict with human rights law.
76. The consultation response from Sense dealt separately with what was understood to be a second element of the Council's proposals, "Move from critical and substantial to critical only". In this regard Sense commented:

Restricting eligibility to critical alone will leave significant numbers of vulnerable people without the support they need. We are particularly concerned about the impact on people with a dual sensory loss. If people whose needs are substantial are no longer able to get support this will mean that people may be left, for example, unable to undertake the majority of family and social roles and responsibilities. The level of isolation experienced by a deafblind person in this position is severe and Sense does not believe that it is acceptable to leave a person in this position without support.

A person with substantial needs is, by definition, a person who is unable to carry out the majority of what would be considered by most of us to be essential daily activities in a particular area, so having a major impact on their lives. I believe that this should make a person eligible for services. Similarly people should not be left at risk of abuse or neglect, simply because the abuse is not classed as "serious".

Sense also believes that any savings are likely to be short-lived. There is evidence indicating that limiting access through raising eligibility criteria has only a modest and short-term effect on expenditure. (Commission for Social Care Inspection and Audit Commission, The effect of Fair Access to Care Services Bands on Expenditure and Service Provision (2008)) Many people with substantial needs who are no longer eligible for support are likely to develop critical needs in future and so require higher levels of support. For instance, deafblind people who need modest levels of support to enable them to lead healthy lifestyles will develop physical and mental health problems due to isolation, lack of exercise and poor diet, meaning they require higher levels of support in the future.

There is evidence that deafblind older people, for instance, have higher rates of a number of common physical and mental health conditions, including falls and strokes. This is unsurprising, since all the advice given to older people about how to stay healthy – moderate exercise such as walking, healthy eating, keeping the mind active and maintaining social contact – is difficult or impossible for a person who is deafblind and has no or inadequate support.

The Council's Principles

The approach does not fit with the principles set out in the budget document, in particular: 2. Preventing problems to avoid big costs later. Refusal to provide a service to a deafblind person on the grounds that their needs do not relate to personal care will inevitably result in people's needs escalating.

Sheila (not her real name) is an elderly deafblind woman who lived alone for the whole of her adult life. Sheila found that communicator guide support made a huge difference to her ability to get by, but she was only given 2 hours per fortnight of a combination of paid and voluntary support. Sheila became increasingly confused due to her deafblindness and her brother who helped with her care found he was unable to cope. The decision was made against Sheila's wishes to place her in residential care.

The Sense professional working with Sheila firmly believes that if Sheila had been given 2 hours per day of communicator guide support at an early stage to help her to readjust to her sensory impairments and thereafter 3 hours twice a week of one to one support, then Sheila could have remained in her own home. The cost of this support would be significantly less than the cost of residential care.

77. Sense was not alone in thinking that the Council proposed to support personal care only. On that question, Mr Ashton-Gray's statement said at paragraph 12:

12. The consultation document stated that Option 2 was concerned with individual budgets "for people whose personal care needs are critical" (emphasis added) (p14). It had not, however, been intended to restrict local authority support to personal (as opposed, for example, to other needs arising from mental health problems or significant disability included in the broader concept of social care). On 2 February 2011, we therefore made the true position clear by publishing on our website a further document entitled "Fair access to care services" which referred to "social care" rather than "personal care", and I handed out copies of this document to those who attended the consultation meeting at Ebrook day centre on 2 February 2011; copies were also handed out by myself and others at all subsequent meetings. …

78. The document Mr Ashton-Gray refers to in paragraph 12 of his statement comprises eight pages and is entitled Fair Access to Care Services Birmingham's proposed eligibility criteria for social care funding from April 2011. I shall refer to it as "The February Eligibility Criteria". Under the heading "Criteria for accessing social care funding", the February Eligibility Criteria noted the four bands identified in national guidance. It continued:

In order to be able to meet assessed needs within the budgets available, Birmingham City Council is proposing to provide funding through an individual budget to those people who have a need (or needs) that fall within the Critical criteria as set out in the attached document [the definition of the bands set out in Prioritising Need] and who have no other means of meeting their own needs.

79. Under the heading "Maximising independence through enablement" the February Eligibility Criteria set out six aims:

1. We aim to keep people safe, healthy and free from harm, where without support from community care services…

Life is, or will be, threatened and/or;

Significant health problems have developed or will develop and/or

Abuse or neglect has occurred or will occur…

…We will take steps to protect vulnerable people who are facing harm or exploitation as a result of serious abuse or neglect. We define abuse as a violation of an individual's human and civil rights by any other person. It may consist of single or repeated acts and take any of the following forms

Physical

Sexual

Psychological or emotional

Financial or material

Neglect or omission

Discrimination

2. We aim to maximise people's choice and control over their own lives where without support from community care services…

There is, or will be, little or no choice and control over vital aspects of the immediate environment…

3. We aim to help people to manage their personal care and other domestic routines, where without support from community care services…

There is, or will be, an inability to carry out vital personal care or domestic routines…

4. We want people to be able to be as active as possible and will provide support from community care services where…

Vital involvement in work, volunteering, education or learning cannot or will not be sustained…

5. We want to help people to maintain vital family and other relationships and vital social support systems and will provide support from community care services where…

These vital relationships or support systems cannot or will not be sustained without this support…

6. In addition to meeting the Critical social care needs of adults we will aim to support people to maintain their parenting and/or caring responsibilities where…

They or the person they care for is eligible for support from Birmingham City Council Adults and Communities directorate…

80. In the remainder of paragraph 12 of his witness statement Mr Ashton-Gray made some further comments about this document:

…the sections numbered 1 to 5 explain various elements of the critical eligibility band. Section 1 deals with keeping people safe, healthy and free from harm. Although the third introductory bullet point (in bold) refers to "[a]buse or neglect" having occurred, it is made clear in the relevant later and more detailed passage (also in bold) that this refers to "serious abuse or neglect" (my emphasis); there was no intention to suggest that a standard lower than "serious" was applicable. Serious abuse is that which is set out for critical need in the Department of Health guidance "Prioritising need…" issued in February 2010 (para 54), to which the consultation document refers and with which it was intended to be compatible. In the guidance, "abuse or neglect" is an element of substantial need; as I have explained, we were not, however, introducing that element into our explanation of critical need.

Publication of the proposed Business Plan

81. The Council's business plan, including its 2011/2012 budget, was due to be decided upon at a meeting of the full Council on 1 March 2011. The proposed business plan was set out in a document entitled "Council Business Plan 2011+." I shall refer to it as "Business Plan 2011+". It began with a message from the Leader of the Council which stated that the Council must reduce its annual expenditure by over £300m within the next three to four years.
82. Part 2 (Strategic Outcomes) reiterated the Council's immediate priorities, the first of which was "Protecting vulnerable people (children and adults)".
83. Part 4 of Business Plan 2011+ dealt with feedback from the November Business Plan Consultation. It said that adult care services were the subject of a detailed consultation process alongside the November Business Plan Consultation. In that regard it noted, among other things, that '[m]any respondents felt that more details of the impact of the proposals would be required in order for them to reach a conclusion'. Returning to the business plan generally, Part 4 identified three areas where Birmingham residents wanted to 'protect investment and avoid spending reductions as far as possible'. One of these was 'social services for the elderly'.
84. Part 9 of Business Plan 2011+ dealt with Risk Management, identifying a number of risks that could potentially have "an adverse impact on the council in the delivery of its planned outcomes and priorities". The second risk identified was '[f]ailure to meet the need to adequately protect and support the most vulnerable adults'. The likelihood of this was said to be 'Medium' (i.e. a 20-50% chance) and the seriousness of the nature of the risk was said to fall into the top banding of 'High' (i.e. a critical impact on the achievement of the Council's objectives). Mitigation of this risk was proposed to be achieved by the delivery of the new operating model for adult services detailed in Appendix 1.
85. Part 10 of Business Plan 2011+ dealt with Equalities. It stated:

1.1 Considerable work has been carried out to make sure that equality impact assessments are undertaken as part of the budget setting process for 2011-2012. Work will continue as service redesign proposals progress.

1.2 This section sets out an overview of the approach being taken and progress made in particular with regard to:

Progress to date in equality impact assessing the overall budget strategy;

The equality-related commitments already made through decisions and proposals.

1.3 Public sector bodies are required under equality legislation to consider the impact of changes to policy and spending on equalities. In carrying out functions, Members must have due regard to, for example, elimination of unlawful discrimination and harassment, promotion of equality of opportunity and the need to take steps to take account of disabled persons' disabilities. These equality considerations do not preclude changes in services being made, but do require that these be fully appreciated, both individually and holistically. Based on national research and guidance, it is clear that the current and future financial challenges facing local authorities mean that it is likely that there will be a considerable impact on some of the country's most disadvantaged people and communities.

1.4 In Birmingham, our approach to equality and diversity, as expressed within our Single Equality Framework 2011-2014, is to carry out equality impact assessments where there are proposed changes to services, so that the implications of decisions are fully understood as they affect specific groups and communities. These have been and will continue to be, regularly reported to Members as part of the decision making processes. Directorates are leading impact assessments on particular proposals to supplement this work and the knowledge that has been gained from previous assessments, surveys and public feedback.

1.5 Several proposals have been made to promote an equitable and fair approach. These include:

Protecting as far as possible funding that is providing services to vulnerable children;

Targeting the use of the new NHS money channelled through Councils for adult care services on support for these groups;

Re-configuring children and adults services to focus on the prevention of serious problems;

Re-configuring personal care services to better meet people's individual needs;

Understanding the implications of increased fees and charges and refining our corporate policy in this area;

Making sure that where practical any changes to the way citizens access services do not disproportionately affect vulnerable groups and communities;

Understanding, monitoring and mitigating staffing implications where possible by using voluntary means such as the recent council wide voluntary redundancy trawl;

Reducing the council's support services budgets by proportionately more to protect front line services;

Working in partnership with other partners such as the NHS to deliver shared services;

Continuing to consult with residents, the business and voluntary sectors and equality groups both on the generalities of the spending reductions we face as well as on specific issues and service re-designs.

The attention of members is therefore drawn to the proposals contained within this plan. These are complex and wide ranging and inevitably the requirement for budget savings will result in changes to service provision and to some reductions in Council services. These will apply to services accessed by all citizens of Birmingham as well as services provided to specific groups.

Members will also need to consider the equalities impact of proposals including those such as the changes in eligibility criteria for social care for adults, the expansion of self-service facilities, and increased fees and charges on particular groups.

86. Appendix 1A to Business Plan 2011+ was entitled "Adults & Communities." Under the heading "Service Proposals" it repeated much of what had been said about "option 2" in section 3 of the December ASC Consultation. Among other things, it repeated the statement that the proposed offer would provide individual budgets "for people whose personal care needs are critical" – in this regard using the original terminology rather than the explanation given in the February Eligibility Criteria.
87. Appendix 2E to Business Plan 2011+ comprised a table of "Portfolio and Committee Savings." The savings for the "Adults and Communities Portfolio" were broken down into fourteen categories leading to total savings in 2011/12 of £51.034 million, and for the period to 2014/15 of £118.215 million. Thus by the time Appendix 2E had been prepared additional savings of £8.134 million in 2011/12 had been identified which, after taking account of other changes, would lead to an overall increase in savings of £5.015 million during the period to 2014/15.
88. The first category of savings for the Adults and Communities Portfolio in Appendix 2E was proposed to give rise to savings of £17.534 million in 2011/12, leading to overall savings of £53.421 million in 2014/15. This category was described as follows:

The New Offer. A universal service providing information, advice and signposting that prevents people needing care in the first place and is more joined up with Health. An individual Budget for people with low incomes/savings whose care needs are defined as critical under the revised eligibility guidance. Will be underpinned in 2011/12 by £15.363m transferred from the NHS under Section 256 of the 2006 NHS Act. The Directorate is in consultation about the extent to which it can reduce care costs or use alternative funding to mitigate the impact on service users. We need to review the funding of care packages of 11,000 service users, and will seek to find lower cost solutions or alternative support mechanisms to mitigate the impact on their core needs.

89. The second category for the Adults and Communities Portfolio in Appendix 2E was proposed to lead to savings of £15.680 million in 2011/12, with no additional savings in this regard being identified for subsequent years. Thus for this category the total overall saving by 2014/15 was the same as that envisaged in 2011/12, namely £15.680 million. This category was described in this way:

Third party care fees. A similar exercise to that already in place with the Council's main suppliers is required to find reductions over and above the savings planned from the introduction of the Universal Resource Allocation System (RAS).

Further responses to the December ASC Consultation

90. On 24 February 2011 a consultation response was submitted by "Autism West Midlands," which was described in the response as being the leading provider of specialist autism services in the West Midlands. The response began by expressing a number of general concerns. The first of these noted issues which threatened the validity of the consultation process:

1. a) Substantial overlap in content with the consultation on the Birmingham Business Plan ('The Budget', BCC, 2010) and Birmingham City Council Business Plan 2011+ (BCC, February 2011a: 141; Appendix 2E). The consultation on The Budget ended on January 17^th. However, the budget proposals about Adults & Communities in this consultation correspond to Option 2 the 'Offer' to Birmingham Citizens in A vision for Adult Social Care in Birmingham (December 2010: 3; 14). Furthermore, the overlap in material contained in Birmingham City Council Business Plan 2011+ (BCC, February 2011a: 141; Appendix 2E) is so substantial that it replicates material still subject to consultation in A Vision for Adult Social Care in Birmingham. As such, it appears the Final Decision about the 'offer' contained in the Adults and Communities Portfolio, will be confirmed at a meeting of the full Council on March 1^st – this is the day before the deadline for responses to this consultation (please see point 4 below).

As a result of the significant overlap in material (please see also point 1. b) below), there are concerns that the later consultation is inadequate, because decisions will have already been made on important contents of the primary document. We would therefore request that BCC clarify whether the responses to this present consultation – A vision for Adult Social Care in Birmingham – will be taken into account given that decisions regarding many of these issues may have already been have made in relation to the Council Business Plan 2011+ (BCC, February 2011a: 141; Appendix 2E) at the full meeting of the City Council on 1^st March 2011.

1.b) "Amendment documents" published during the consultation process result in inadequate consultation and conflicting interpretation. Autism West Midlands has a number of substantive concerns about the proposed changes to eligibility criteria which are outlined below. However, we would also like to raise some procedural concerns about the publication of what appear to be "amendment documents" after the original Vision for Adult Social Care in Birmingham was launched on 2^nd December 2010. These amendment documents include;

The letter dated 17^th December (UR01/60250217);

The document Budget Consultation January 2011 presentation (BCC, January 2011a);

The document Birmingham City Council Business Plan 2011+ (BCC, February 2011a);

The document A Vision for Adult Social Care in Birmingham Easy Read consultation summary, (BCC, January 2011b),

The document A Vision for Adult Social Care in Birmingham Easy Read Consultation Questionnaire, (BCC, January 2011c)

And Fair access to care services Birmingham's proposed eligibility criteria for social care funding from April 2011 (February 2011) (BCC, February 2011c).

Publication of these subsequent documents raises three issues which bring into question the adequacy of BCC's consultation on A Vision for Social Care in Birmingham.

1.b) i) Issues of interpretation. Given that these amendment documents add information which goes to the core of understanding the original consultation document, A Vision for Adult Social Care in Birmingham, and yet were published after 2^nd December, issues of interpretation arise. Either the four documents are to be read as one consultation or they are to be read as four separate documents. This leads to two further issues: a dissonance in the definition of 'critical' in BCC's proposed amendment to the eligibility criteria and difficulty in establishing which takes precedence. This further calls into question the adequacy of the consultation (see points 1.b) ii) to ii) and 1.c? below).

1.b) ii) Dissonance in definitions – which takes precedence? The four documents, A vision for Adult Social Care in Birmingham, Budget Consultation January 2011 presentation, Birmingham City Council Business Plan 2011+, and Fair access to care services Birmingham's proposed eligibility criteria for social care funding from April 2011, use different definitional phrasing to describe the changes to Birmingham's eligibility criteria for adult social care. A Vision for Adult Social Care in Birmingham says that the 'new offer', in Option 2, is to provide '[i]ndividual budgets for people whose personal care needs are critical*' (BCC, December 2010: 14; emphasis added). Although this cross-references the Department of Health Guidance, the phrasing '[i]ndividual budgets for people whose personal care needs are critical' and '"critical" personal care only' is used at two other points in this document (ibid: 16; 20). BCC, therefore, appears to be using a narrower definition than that used by Department of Health Guidance for its critical eligibility band (DH, 2010). The Budget Consultation January 2011 presentation also uses the phrasing '[a]n Individual Budget for people with low incomes/savings whose personal care needs are defined as critical' (BCC, January 2011: 19). At an event at New Bingley Hall on 06.01.11, when asked about this point, a facilitator confirmed that there was no misprint and eligibility would be restricted to critical personal care needs only.

However, interpretation of the definition of Birminham's revised eligibility criteria is called into question with the publication of two of the other amendment documents Birmingham City Council Business Plan 2011+ (BCC, February 2011a) and Fair access to care services Birmingham's proposed eligibility criteria for social care funding from April 2011 (February 2011b) on this point. The former document is internally inconsistent as at one point it offers '[a] funded service for only those of low means whose personal care needs are critical' (BCC, February 2011a: 113). Later, however, it does not mention 'critical personal care needs'; instead if offers '[a]n Individual Budget for people with low incomes/savings whose care needs are defined as critical under the revised eligibility guidance' (BCC, February 2011a: 141; Appendix 2E; emphasis added). It is unclear, whether the 'revised eligibility guidance' refers to Department of Health Guidance or to the document Fair access to care services Birmingham's proposed eligibility criteria for social care funding from April 2011. There is therefore confusion as to which definition takes precedence within the Birmingham City Council Business Plan 2011+.

If it is the case that the Council intends the document Birmingham's proposed eligibility criteria for social care funding from April 2011 to take precedence, this has not been made explicit either on BCC's Social Care Vision webpage or within the Birmingham City Council Business Plan 2011+ . However, if it is the case that it takes precedence then there is a clear statement that BCC still undertakes to fulfil the Critical Social Care needs of Adults (BCC:8). Although this is less than the Department of Health's Guidance (see below) it at least indicates full compliance with the 'critical' banding.

When a Council representative was asked, at a consultation event held at Norman Power Centre on 22.02.11, which document was to take precedence, he answered that the former document would do so. However, when page 19 of Budget Consultation January 2011 presentation was shown, he was asked to confirm whether the eligibility criterion was going to be changed from 'critical and substantial' to 'critical' as a whole band or whether it was going to be contracted beyond this to 'critical personal care needs', he confirmed BCC's eligibility criterion would be changed to the latter.

1.b) iii) Points 1.b) i) and ii) severely undermine the opportunity for service users to respond. The very service users affected by the proposals in A Vision for Adult Social Care in Birmingham – especially those with learning disabilities and autism – would struggle to cross reference all the amendment documents outlined above and to determine which of these documents takes precedence. All this undermines the accessibility of BCC's present consultation (see also point 2 below).

1. c) Necessity to extend consultation. Given that these amendment documents create conflicting interpretations of BCC's proposal to amend its eligibility criteria and were published after the commencement of this consultation, it is submitted that the consultation period should be extended beyond 2^nd March to end three months from the publication of the last of these amendment documents (BCC, February 2011c). This is the case whether the four documents are to be read as one consultation or whether they are to be read as four separate documents, which each need to be consulted upon. If this does not occur, the Council's decision-making on its proposed changes to Adult Social Care could be subject to Judicial Review.

91. The second general concern identified by Autism West Midlands was the apparent absence of any equality impact assessment:

2) Apparent absence of Equality Impact Assessment. The Birmingham City Council Business Plan 2011+ highlights for attention, in the Council's Risk Management, that one of the main risks is the 'failure to adequately protect and support the most vulnerable adults (Risk 2)' (BCC February 2011a: 103). However, even though the section on 'Equalities' in this document notes that work has been carried out to 'make sure the equality impact assessments are undertaken as part of the budget setting process for 2011-2012' and will 'continue prior to the Full Council meeting', it then signposts Council members to the individual Directorates who 'are leading impact assessments on particular proposals to supplement this work and the knowledge that has been gained from previous assessments, surveys and public feedback' (BCC, February 2011a: 110-12). At the date of writing this response (22.02.11), Appendix 1A (ibid: 112) does not fully assess the impact of these service proposals on individuals with protected characteristics under the Equalities Act 2010. Furthermore, on following additional signposting to the Adults and Communities Directorates, it appears that BCC has not carried out an Equality Impact Assessment of the proposed 'offer' to the citizens of Birmingham in A Vision for Adult Social Care in Birmingham. No such assessment is on the Social Care Vision Webpage nor as part of any appendices to any of the documents available on this page. Either this is an oversight by the Adults and Communities Directorate or this Directorate intends to produce such a document after they receive consultation responses. Both situations are problematic.

2. a) As mentioned above (see point 1a)), the BCC website clearly states that a meeting of the City Council will make a final decision on their Birmingham City Council Business Plan 2011+ (BCC, February 2011a) in the Agenda CC 01032011 (BCC, February 2011c). Although, as BCC itself points out, 'equality considerations do not preclude changes in services being made' and admits that financial challenges 'facing local authorities mean that it is likely that there will be a considerable impact on some of the country's most disadvantaged people and communities' the Council should not overlook their Equality Duty (Equality Act 2010) and the Equality and Human Rights Commission Guidelines on this. It is submitted that because it appears that there is no Equality Impact Assessment for A Vision for Adult Social Care in Birmingham, the ability of the City Council's Members to approve the budget proposals for Adult Social Care contained in Birmingham City Council Business Plan 2011+ is impeded. Councillors will, therefore, not be properly informed about the impact of this Final Decision affecting Birmingham's 11,000 citizens currently in receipt of care packages (BCC, February 2011a: 141).

2. b) The very nature of autism means that individuals on the spectrum can often have difficulty remembering processes relating to the 'self' and recalling events performed by the individual themselves (see Boucher and Lewis, 1989; Milward et al, 2000). Individuals on the spectrum who have Asperger Syndrome may also find it difficult to appraise their ability to undertake certain tasks because 'they have problems in integrating information to arrive at a coherent global picture' (Mitchell, 2010: 9). Therefore, it can be difficult for the individuals themselves to remember and reflect upon their ability to cope in certain situations. As a result, they could find it hard to fully understand the impact of the proposals in A Vision for Adult Social Care in Birmingham on their lives. Without an Equality Impact Assessment, those citizens who are on the spectrum may be prevented from fully reflecting upon the likely impact of the proposals, contained in A Vision for Adult Social Care in Birmingham, on themselves as adults with a disability. Consequently, their ability to produce informed and meaningful responses to the consultation is undermined. This issue has been compounded by the fact that the Easy Read versions of the Consultation Summary and Consultation Questionnaire for A Vision for Adult Social Care in Birmingham was only produced in January 2011 – a month after the commencement of the consultation (BCC, January 2011b: 1; 2011c: 1)

92. Turning to specific proposals, Autism West Midlands made comments on the proposed RAS as follows:

5. Resource Allocation System (RAS)

5.a) Insufficient detail about points threshold. The proposal to replace the Self Assessment Questionnaire (SAQ) with RAS – turning aggregate point awards into a financial lump sum – does not include enough detail about whether there will be a basic point threshold and a tiered award system. When a Council representative was asked, at a consultation event held at Norman Power Centre on 22.02.11, what the basic points threshold would be, how much funding this would translate to and how this would relate to the change to BCC's eligibility criteria, that the response was 'the Council [is] not clear how it is going to do this yet.' Therefore it is difficult to assess the likely impact of revisions to funding amounts, under RAS, on existing and potential service users.

5.b) Ensure that the new assessment appropriately takes account of the particular needs of individuals on the spectrum and the variable and fluctuating nature of autism. The consultation document – A Vision for Adult Social Care in Birmingham – provides insufficient detail about what the RAS questions will be in the consultation document. In order to reflect the variable and fluctuating nature of autism the assessment should consider the following issues:

Adults with autism often experience high levels of anxiety and stress which mean that the more anxious the individual with autism, the 'less likely they were able to cope' with 'change, anticipation, sensory stimuli and unpleasant events' (Gillett et al, 2007). Thus it is vital that the reformed assessment captures the fluctuation in an individual's anxiety which will affect their ability to cope with their personal care, plan for meal arrangements and mobility.

We recommend that when a version of the new RAS assessment is complete, it should be piloted with individuals at different points on the autism spectrum.

5. c) Equality of impact not equality of access. Under the new RAS, the Consultation makes it clear that there will no longer be differentiation by service user group, instead 'each point would be worth the same amount of money regardless of the service user grouping a person is from, such as…an adult with a physical disability or a learning disability' (BCC, December 2010: 10). The council's reasoning is that in making this change, 'funding is allocated in a clearer and more equitable way' (ibid). However, this change may appear to enhance equality of access but the decision does not result in equality of outcome (see Thomson et al, 2009). If provision does not take account of inequality of outcomes, there is a high likelihood that the stated aims of prevention and re-enablement will not be achieved (see point 8. below).

5. d) Leading question. An unfortunate, and probably unintended, consequence of the consultation on the introduction of the RAS system is that the question (BCC, December 2010: 11) conflates two things: asking about the use of individual budgets per se and how to allocate those budgets on the basis of the particular characteristics.

93. In relation to the proposed "Quickheart" software, Autism West Midlands said:

7. a) Quickheart and the digital divide. It has long been documented that certain groups are more vulnerable to the digital divide (Kennedy, 2006) – this means they have reduced access to the internet and have difficulties with being active producers on the web – and is especially true for individuals with intellectual disabilities (Kennedy et al, 2009). We are concerned that the introduction of Quickheart, with the emphasis on assessments primarily being carried out online, will have a negative impact on individuals with autism. Individuals on the spectrum often present as 'normal' during assessments, with their answers to assessment questions indicating that they are coping. However, this is largely due to the tendency towards literal interpretation by individuals on the spectrum (Happe, 1993) which means that questions posed in the reformed assessment should be clearly qualified. Rather than using closed 'yes/no' questioning we recommend that key questions are supported by further questions that can validate that the service user fully understands the original question. For example, a question like 'Can you cook?' should be accompanied by supplementary questions such as 'What meals can you cook?' and 'How do you make these meals?' in order to elucidate what they understand cooking to involve. The opportunity to elucidate their understanding of such life skills would give a more thorough comprehension of the individual's capabilities. In turn, this would enable assessors to make a more informed judgment about the needs of the service user.

Our organisation recommends that these issues of accessibility mean that reassessments should be undertaken with support from social workers or advocates who have received autism awareness training as recommended under Implementing fulfilling and rewarding lives (December 2010). If this does not happen, the perceived short-term cost-benefits of moving assessments to an online tool may result in higher costs for crisis intervention services in the long-term (see NAO Report, 2009).

94. Section 8 of Autism West Midland's response dealt with the Council's proposal to deliver adult social care services with reduced funding. This expressed numerous concerns about the possibility that funding would be confined to personal care needs. Among other things, it also included the following:

8. Delivering adult social care services with reduced funding.

8. a) Despite the figures contained in A Vision for Adult Social Care In Birmingham (BCC, 2010: 23), it is not entirely clear what the actual reduction or limitation to individual personal budgets will be. Presumably, this unpublished figure will now have been further reduced by the front-loading of the reductions in expenditure, as a result of all the changes in Option 2, from £40.466 million (BCC, December 2010: 20; table 2) to a total Adults and Communities Portfolio Savings of £51.034 million in 2011/12 (BCC, February 2011a: 141). We would therefore request that information is published about the threshold and ceiling amounts that are assumed to be allocated per eligible person through the proposed changes…

…8. c) vii) Impact of move from 'critical and substantial' to 'critical'. Early intervention not only ensures a much improved quality of life for the person with autism, it can often provide support at a much lower total cost to public funds (see National Audit Office Report, 2009). Furthermore, the Department of Health's Guidance – Prioritising need in the context of Putting People First: a whole system approach to eligibility for social care (2010) - recognises that limiting access through 'raising eligibility criteria' 'has only a modest and short-term effect on expenditure' (ibid: 6, 19; see also Commission for Social Care Inspection and Audit Commission, 2008). As a consequence, if BCC implements its proposal to raise the threshold from 'Critical and Substantial' to 'Critical' there will be an increased level of crisis cases which, as this evidence shows, will cause more expense to the authority.

We believe that unless great care is taken, the result will encourage the Adult Care System in Birmingham to drift towards crisis: intervention will happen late and expensively when there is a crisis, with consequent detriment to people with autism, their families, the community, and the finances of the Council. This will be in conflict with the Council's other stated aim – to 'keep people as independent as possible for as long as possible' (BCC, December 2010: 14). We therefore strongly recommend that BCC reviews and reconsiders this proposal to narrow its eligibility criteria.

8. d) Complete re-assessment of all service users in receipt of social care packages. Decisions already made? Taking together the consultation document, A Vision for Adult Social Care in Birmingham, and the document Fair access to care services Birmingham's proposed eligibility criteria for social care funding from April 2011(BCC, February 2011b), it appears that the Council intends to review all 11,000 service users in receipt of social care packages from 1^st April 2011 under the proposed RAS and Quickheart assessment system. We would like clarification of the time by which BCC believes this re-assessment will take place and the cost of the re-assessment itself.

95. It was at this point in the chronology that the present proceedings were issued. In addition to the correspondence between Public Law Solicitors mentioned earlier, there had in the meantime been correspondence between Irwin Mitchell (solicitors for W) and the Council.

The February supplementary information

96. In late February 2011 members of the Council were provided with a document headed, "Council Business Plan 2011+ Supplementary Information" ("the February Supplementary Information"). This document was a supplementary paper for the Council meeting on 1 March 2011. Relevant for present purposes is part A, which was described as "Update to the Corporate EINA including Interim Summary of Adults and Communities EINA." It was explained that the Corporate EINA and the Adults and Communities EINA prepared to date were available as background papers and had been used in the production of part A. The second to fifth paragraphs of part A stated:

Based on national research and guidance, it is clear that the current and future financial challenges highlighted in the business plan mean that it is likely that there will be a disproportionate impact on some of the most disadvantaged groups within the community. In particular this may affect older people, those with disabilities and some BME communities. The Council is urged to consider the terms of the EINA, prepared by the Adults and Communities Directorate, which considers the impact of that Directorate's proposals for implementing the draft Business Plan.

Nevertheless, commitments have been made in the Business Plan to protect vulnerable children (the Council has protected funding in this area by requiring lower than average and later contributions to the budget reduction from the Children, Young People and Families Directorate).

Reconfiguring personal care to better meet people's individual needs, investing in the prevention model to prevent problems later on will all provide some mitigation for older people and people with disabilities.

97. Part A continued that the "majority of the detail and impacts" would be "captured in directorate plans and sub directorate service plans which will be subject to regular review." It added that the A&C directorate were "in the process of concluding their Consultation and Impact Assessments." By way of summary of the position so far, part A described the "Vision for Adult Social Care in Birmingham" set out in the December ASC Consultation, including the proposed move to individual budgets "for people whose community care needs are critical…". The remainder of part A needs to be set out in full. It was as follows:

There is an EINA which draws attention to the potential impact to citizens, including disabled people.

1. Gender: Of all service users over the age of 65 years, 69% are female. Therefore more older women could benefit from the proposal to introduce a 'Universal' resource allocation system. Of all service users under the age of 65 years 54% are male. Therefore younger males may not benefit as much from the proposal to introduce a 'Universal' resource allocation system.

2. Age: In proportional terms, although 63% of service users with a FACS banding of 'critical' are female and 63% of service users who have a FACS banding other than 'critical' are also female (2,636), it must be noted that of that latter group 80% of them are over the age of 65 years (2,123). (It should also be noted that a further 596 male and 608 female service users do not have a recorded FACS banding).

3. Disability: It goes without saying that any proposed change to social care activity would have a differing impact upon individuals with different kinds of disability, because of their disability, in as much that they access social care services. Of all current service users, over 60% have a recorded FACS banding of 'critical'. Almost 30% of service users (4,200 individuals) have a recorded FACS banding which is not 'critical'. Approximately a further 10% of service users (1,200 individuals) do not have a recorded FACS banding.

Officers have been considering and collating responses to the consultation on an on-going basis and this will be completed after the March 2^nd close of consultation.

In making any decisions Members are encouraged to have due regard to the impact of equalities issues upon vulnerable and disabled people.

98. The background paper referred to in part A as the "corporate EINA" was a document whose cover sheet was dated December 2010 and marked "INTERIM". An overview section explained the role of an EINA, the first stage of initial screening, and the second stage of full assessment, along with individual steps in the second stage. As regards Stage One (initial screening), the Corporate EINA included:

Equality Duties of the Council

Public sector bodies are required under equality legislation to consider the impact of changes to policy and spending on equality characteristics. Attention is drawn to the Council's equality duties which are set out at Appendix 1. The Council's duties here can be summarised by a quote from Guidance issued by the Equality and Human Rights Commission (Guidance on Using the equality duties to make fair financial decisions, September 2010) which states:

'…your authority has legal duties to pay 'due regard' to the need to eliminate discrimination and promote equality with regard to race, disability and gender, including gender reassignment, as well as to promote good race relations. The law requires that this duty to pay 'due regard' be demonstrated in the decision-making process.'

It is extremely important that the Council has regard to all of these duties when making policy decisions which could have an impact on protected groups.

In some cases, the Council's equality duties require the Council to have due regard to the need to treat some groups more favourably than others. In this regard the Council's attention is drawn to section 49 of the Disability Discrimination Act 1995 which sets out the Council's general duty in relation to disability discrimination. The Council's duty is to have 'due regard' to the need to: eliminate unlawful discrimination and victimisation of disabled people, eliminate harassment of disabled people, promote equality of opportunity between disabled persons and other persons, promote positive attitudes towards disabled persons, encourage participation by disabled people in public life, and to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than others.

The Council is urged to consider these duties (along with the other equality duties)when considering the proposed Business Plan and particularly in relation to those aspects of the implementation of the Business Plan which can be expected to have an impact on disabled people. In particular, the Council is urged to consider the terms of the EINA, prepared by the Adults and Communities Directorate, which considers the impact of that Directorate's proposals for implementing the draft Business Plan.

Although [sic] the Disability Discrimination Act duty, which includes a duty to have due regard to the need to treat disabled people more favourably, you are urged to consult Appendix 1 for a summary of all the Council's equality duties.

99. Stage One concluded with a decision that a full assessment was required. As regards Step 1 (scoping) of the full assessment, a list of data, research and other available evidence or information was set out. It was stated that no gaps had been identified in that material. The account given for Step 2 (involvement and consultation) noted, among other things, that in a 2010 survey residents' initial views on changing spending were that they wanted to protect adult and children's social care, community safety, and services for people with a physical disability, learning disability, or mental health disability. It referred to the proposed new model for social care in the Business Plan and said that the December ASC Consultation would be used "to inform and develop the new model."

100. In the EINA Manual Step 3 concerned data collection and evidence. No such step appeared in the Corporate EINA. Instead Step 3 of the Corporate EINA dealt with what comprised Step 4 in the EINA Manual: assessing impacts and strengthening the policy. Here the Corporate EINA set out a question and answer as follows:

6. What will be done to improve access to, and take-up of, or understanding of the policy, strategy, function or service?

The current and future financial challenges highlighted in the business plan mean that it is likely that there will be a disproportionate impact on some of the most disadvantaged groups within the community. In particular this may affect older people, those with disabilities and some BME communities.

Nevertheless commitments have been made in the Business Plan to protect vulnerable children (The Council has protected funding in this area by requiring lower than average and later contributions to the budget reduction from the Children, Young People and Families directorate).

Reconfiguring personal care to better meet people's individual needs, investing in the prevention model to prevent problems later on will all provide some mitigation for older people and people with disabilities.

Other commitments include

Understanding the impacts of fees and charges and the impact of those on vulnerable groups, taking steps to mitigate such impact;

Continuation of support to those with learning difficulties and mental health problems;

Ensuring that where possible changes to citizens access to services e.g. self service, do not disproportionately affect vulnerable groups;

Making sure we have a fuller understanding of the implications of rationalisation of council facilities and the reduction or removal of subsidies in certain areas. Careful consideration of the accessibility of facilities both in a geographic sense and a personal finance sense;

Understanding, monitoring and mitigating staffing implications where possible by using voluntary means such as the recent council wide voluntary redundancy trawl.

The city is also taking a commissioning approach to service design and its robust asset management plan seeks to ensure the physical assets are deployed to minimise cost to the service, realise income for the city and contribute to the city's private sector growth.

The majority of the detail and impacts will be captured in directorate plans and sub directorate service plans. The city is taking a robust approach to planning its services with a renewed commitment to business planning through a Corporate Planning Framework sponsored by Corporate Management Team.

Thus the Corporate Planning Framework has been redesigned as a toolkit to capture the principles needed to apply when preparing service and directorate plans and strategies including the equalities framework. Plans are expressly instructed to link to the Council Business Plan and to adhere to the latest Equalities policies within the city and those enshrined in law. The Framework has been publicised through the Council's service planning community and free, open workshops have been held to support directorates in understanding their contribution to the wider picture.

Services are also responsible for engaging their stakeholders in accessing services and providing information in relation to changes in services and making sure their services are accessible to those who need them. The planning framework gives information and signposting to managers to enable them to access the most up to date tools to assist with that engagement.

The corporate equalities group will continue to champion the robust EINA process and contacts are listed for individual directorates and further information is available on budget reductions implications on a directorate basis from that group. The Council-wide communications undertaken through a range of media ensure residents are kept up to date with Council services, and the corporate engagement strategy and Be Heard database will capture resident involvement providing timely information about impacts, ensuring the Business plan decisions mitigate as far as possible any the impacts of the financial savings on vulnerable groups.

Planning is not a static exercise but an iterative process that requires continuous review following customer feedback and consultation and achievement of stated targets and milestones.

101. It may be noted at this point that in its "overview" section the Corporate EINA began its explanation of what was required for Step 5 with introductory paragraphs similar to those in Step 6 of the EINA Manual. It then set out the passages quoted at paragraph 46 above.

102. Returning to the section of the Corporate EINA dealing with Stage Two, what was set out at Step 5 (Making a Decision) was as follows:

The Council's Business Plan establishes how the Council will work towards its strategic priorities. It is framed within the mandatory financial savings to be made. Each service area will differ in the impact it has on each equality group.

The principles laid out in the Council Business plan are expressly designed to ensure that services are commissioned to meet the requirements of the Sustainable Communities Strategy and meet the needs of vulnerable groups.

This high level screening is inextricably linked and dependant upon information from directorate Equality impact assessments of

Directorate Service Plans

Directorate Budget savings proposals

Commissioned service EINAS

Service plans for individual teams

Workforce Planning

The Birmingham Compact

These will be the responsibility of individual directorates.

The screening for this EINA includes two task groups which have been held to gain views from across directorates as widely as possible across the council, and complement the work of the corporate equalities group. Screening has established that the budget reductions will have impacts for people across directorates and agencies. A number of mitigations have been suggested, and more broadly the city has taken the approach of:

Protecting front line services and reducing back office functions

Moving to a commissioning organisation which specifies outcomes for people rather than a one size fits all

Applying seven clear principles to planning

The exact nature of the service redesign is not finalised as the consultation is still ongoing thus the impacts will continue to be picked up through ongoing, individual EINAs on service redesign

The business plan acts as a framework alongside the new corporate planning framework which sets out the cities approach to business planning and its equalities duties

The city has provided a clear framework to support achieving the strategic outcomes and meet the authority's responsibilities in relation to equality by:

- adopting clear planning principles

- having a robust planning process,

- conducting EINAs on the budget savings proposals

- understanding its communities through initiatives such as the Customer Knowledge team and working with residents and service users, gathering information from such work on the public Be Heard Database.

103. Under Step 6 (Monitoring, Evaluating and Reviewing) it was recorded that a performance management framework accompanied the Plan, with performance to be reported to elected members. A risk register was completed and tracked for the Plan and was regularly reviewed. It was added that the Plan was reviewed each year and updated accordingly.

104. Step 7 was the Action Plan. It identified five actions. I have numbered them for convenience:

(1) As regards involvement and consultation, the planned action was "Ensure Equalities division are part of any consultation."

(2) As regards data collection, the planned action was: "Ensure all plans and strategies are EINAd."

(3) As regards assessment and analysis the planned action was: "Carry out further screening once consultations complete…"

(4) As regards procurement and partnership, the planned action was "Ensuring commissioned services adhere to equalities."

(5) As regards monitoring, evaluation and reviewing, the planned action was "Review as Part Of Biannual Review."

Meeting of the Council, 1 March 2011

105. The minutes of the Council meeting on 1 March 2011 record that a number of petitions had been lodged. These included a petition from residents of Birmingham "calling upon all City Councillors to vote against the massive budget cuts planned for Birmingham public services on Tuesday 1 March 2011."

106. The minutes also record that standing orders were waived to allocate up to four hours for the whole debate on the Council Business Plan 2011+ report.

107. The motion seeking that the Business Plan 2011+ be approved set out the revenue budget calculations which were proposed. After allowing for income and use of financial reserves, the budget requirement for 2011/12 was identified as £1,023,492,720. Of this, £691,205,843 would be met from redistributed non-domestic rates and Revenue Support Grant. The balance of £332,286,877 would need to be recovered by way of council tax. This would result in a basic amount of Council Tax for City Council services for the financial year commencing 1 April 2011 being set at £1,113.6677. The minutes record that Councillor Whitby emphasised that:

The City would still be spending over £3.5 billion on quality services for local people, making a total of £7 billion including partners. In addition to this there would once again be no increase in Council Tax for the citizens of Birmingham.

108. An amendment was moved by Councillor Sir Albert Bore. The amendment sought to change budget allocations in a number of respects. Among these were an additional allocation of £5.270 million to provide care packages for individuals at the top end of "Substantial" care need, an additional allocation of £2.635 million for respite care for families most in need, and an additional allocation of £1.845 million for learning disabilities. The minutes record comments by Sir Albert on the cuts proposed in the budget, including the comment that as regards the A&C Directorate:

A restriction on the use of City Council funded care to people with critical personal care needs and support for people with lesser needs being provided through funding for community, voluntary and independent care services. A volunteer in such circumstances would need to have spare time and energy, an infinitely re-deployable skill set and money to allow time-off from paid work. The Budget Report set out that at least 11,000 individuals would undoubtedly be affected by the cuts in this area and about 3,500 of those would have no care package whatsoever. The Budget also removed £2.4 million from packages supporting people with mental health difficulties and learning difficulties, with that figure rising to £6.3 million by 2014/15.

109. The minutes gave an account of points made in the debate, including the following:

Full consultation had been undertaken since June 2010 with various stake holders and up until today's meeting the Opposition Party had been silent on how they would manage the City Council's budget.

The two main aims of the budget were to protect vulnerable people in the City and provide value for money.

A number of organisations who had not responded subsequently had been requested to provide a business plan but had still not responded or engaged with the Council.

Adult Social care needed radical reform and the consultation on the new social care offer would conclude on Wednesday 2 March 2011.

Individual users of Adult Care Services would not be left without a service but would be sign posted to other help and support through the access service. The service had already achieved major changes, for example, the reduction of elderly persons' homes from 29 to 4. The relationship with the Third Sector had changed from making grants to commissioning services. Central Government had announced a transitional fund to allow charities and social enterprises to compete for Government contracts. Overheads and costs would be removed from previous practice of paying for care homes and day centres. The City was directing money, some from the health service, into prevention measures such as telehealth, preventing falls, recognising dementia and increased respite.

When the current Administration had taken over Adult Services, it had been the worst performer in the country with a considerable overspend. Working with stakeholders and employees the service had been turned around.

Early study of consultation feedback indicated that users of Adult Care Services appreciated what the Council had to do and the proposed changes, with users willing to work with the Council to make the changes successful.

…

To cut £51 million from the budget of services that met the needs of the most vulnerable was obscene and would hit those in most need the hardest.

Whilst it could not be denied that there were hard budgetary decisions to be made, the Opposition Group felt that the proposed budget was too much too fast. It was believed that care packages would be withdrawn and that the third sector who it was assumed would provide some of the services that the Council would not be providing would also suffer from funding cuts. The Council may end up paying more in the long run as people slipped into critical care because of funding cuts.

It was felt that the proposed lobbying of MPs was too little, too late.

Due to the financial deficit, change was inevitable and needed to be planned for which was what the City Council was doing.

There was a concern that the voluntary sector would not be able to cope with the role that they were being asked to assume in providing services.

110. The outcome recorded in the minutes was that Sir Albert's amendment failed and, with minor amendments that I need not set out here, the motion approving the Business Plan 2011+ and the budget calculations described above was carried.

The Council's response to BACOP, 10.3.11

111. On 10 March 2011 a letter was written by Mr Hay to Mr Barry Clewer, chairman of Birmingham Advisory Council for Older People ("BACOP"). The letter responded on behalf of the Council to five issues which had been raised by BACOP. I set out here what the letter said about the second, third and fourth of these issues:

The implications of the restriction of eligibility for a personal budget to those with critical needs only

Any change of policy, such as that suggested in the consultations accompanied by an Equalities Impact Needs Assessment (EINA) and a summary has been made available as one of the appendices to the Cabinet report.

Prioritising need in the context of Putting People First: A whole system approach to eligibility for social care.

"Councils should exercise considerable caution and sensitivity when considering the withdrawal of support. In some individual cases, it may not be practicable or safe to withdraw support, even though needs may initially appear to fall outside eligibility criteria. Councils should also check any commitments they gave to service users or their carers at the outset about the longevity of support provided. If, following a review, councils do plan to withdraw support from an individual, they should be certain that needs will not worsen or increase in the short term and the individual become eligible for help again as independence and/or well-being are undermined."

Our new offer includes the development of preventative services for those whose needs are below critical, aimed at preventing their condition from deteriorating.

We intend to handle the removal of services from those whose needs are below critical sensitively. We have already outlined in the new offer that we will sign post people to other services and where appropriate a short-term reablement service will be available and telecare.

Our new offer includes closer working with health to join up services where appropriate. This will emerge as the GP consortia arrangements for the Birmingham area are finalised.

"No Secrets" relates to abuse or neglect experienced by vulnerable adults no matter their age or living arrangements. It defines a vulnerable adult as "a person who is or may be in need of community care services by reason of mental or other disability, age or illness; and who is unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation". This definition is wide and includes individuals in receipt of social care services, those in receipt of other services such as health care, and those who may not be in receipt of care services. The City Council therefore has a duty to safeguard vulnerable adults and will continue to do this on a case by case basis looking at the risks a person is facing. Safeguarding arrangements will continue to exist to protect vulnerable adults in the City of Birmingham and safeguarding adults' investigations will take precedence over community care assessments.

It is still a requirement to provide a social care assessment to anyone who appears to need it. Therefore any person, regardless of financial means can request an assessment. We share your concerns to not leave people who fall below our threshold for funded care isolated. That is why our offer includes information, advice and sign posting for everyone, preventative services where appropriate and reablement services where appropriate. We are looking to develop community based services over time to assist people who are vulnerable and do not receive funded care.

The implications of moving too quickly to option 2

No one will have their funding removed without a review and this suggests that there will need to be an order to who is reviewed and this will happen over time. We will be looking to offer reablement where appropriate and telecare where appropriate, as well as sign posting to other services. As already indicated we will look to deal with these proposals, if approved by cabinet, sensitively within the constraints of the cash allocation approved by the City Council on 1 March.

The proposed Universal Resource Allocation System and needs assessment

The City Council continues to have an obligation to assess people who think they may have care needs. The self assessment tool is meant to be a helpful device to enable people to consider whether they need help. Self assessment has its roots in "In Control" and is increasingly available throughout the country. However, it is not designed to replace a social work assessment: if we think people need an assessment they will get a social work assessment.

As you point out the RAS values are only a guide. We will be working hard to provide appropriate services within RAS values given the City Council's resource constraints. We are aware of our duty to provide services that meet eligible need and that duty does not change just because we have implemented a resource Allocation System to distribute cash in as fair a way as possible. Evidence has shown, particularly with direct payments that individuals have found innovative ways to meet their care needs within the resources available often with better outcomes that "traditional" service offers.

The A&C March report

112. In advance of the Cabinet meeting scheduled for 14 March 2011, Mr Hay prepared a public report in his capacity as strategic director of the A&C Directorate. The subject of the report was described as "CONSULTATION OUTCOME – UNIVERSAL RESOURCE ALLOCATION SYSTEM AND CITIZEN STATEMENT". I shall refer to it as "the A&C March Report." Section 1 of the report set out its purpose as follows:

1. To advise Cabinet of the responses to the consultation on consolidating the current group based Resource Allocation Systems into a single Universal Resource Allocation system and the portfolio's plans to meet the budget challenge it faces in 2011/12 and beyond.

1.2 To seek approval for proposals for a New Offer for Adult Social Care underpinned by the resources that will be transferred from the NHS in 2011/12 to fund social care services that benefit health.

1.3 To seek approval for the adoption of a Universal Resource Allocation system from the 1^st April 2011 based on the 2011/12 Citizens Statement

1.4 To seek approval for new criteria to determine eligibility for adult social care services funded by the Council from the 1^st April 2011 and the operational arrangements for its implementation.

1.5 To advise on the legal equalities implications of the above proposals.

1.6 To seek approval to extend grant funding to some 3^rd Sector projects that expire on 31^st March 2011 as set out in the private report.

113. The decisions recommended at Section 2 of the A&C March Report were set out in Appendix 1 as follows:

2.1 Cabinet is recommended to approve the following recommendations for the introduction of the New Offer for Adult Social Care and the adoption of a Universal Resource Allocation System in Birmingham from the 1^st April 2011.

2.1.1 To approve the results of the consultation set out in appendix 3 and public support for the adoption of a Universal Resource Allocation System, the publication of the Citizen's Statement and the New Offer for Adult Social Care

2.1.2 To approve the New Offer for Adult Social Care as informed by the consultation as set out in appendix 2 of this report.

2.1.3 To approve the proposals for the funds transferred by the NHS under Section 256 of the NHS Act 2006 as set out in Option 4 in appendix 5.

2.1.4 To approve the adoption of a Universal Resource Allocation System as informed by the consultation as set out in appendix 6 and the underlying allocation of resources in the 2011/12 Citizens Statement in appendix 7.

2.1.5 To approve the adoption of the revised eligibility criteria and operational principles as informed by the outcome of the consultation and set out in appendix 8 of this report.

2.1.6 To approve the Equalities impact of the above recommendations as set out in the summary of the full EINA in appendix 4.

2.1.7 Authorise the Strategic Director of Adults and Communities to implement the savings agreed in the Council Plan with respect to care fees paid to 3^rd parties and the extension and management of existing agreements pending introduction of new framework contracts on the 1^st July 2011 as recommended in appendix 9.

114. Section 3 dealt with compliance issues. Among other things, this noted that there had been extensive consultation on the proposals, including 76 public meetings, 48,000 letters to service users/carers and dedicated events for providers and local trades unions. The outcome of the consultation was shown in Appendix 3. Relevant legal powers were identified as contained in the National Assistance Act 1948, the CSDPA and the NHSCCA with associated legislation and guidance; it was added that a summary of the full EINA on the impact of the report's proposals was at Appendix 4. As to the carrying out of the proposals within existing finances and resources, it was proposed in paragraph 3 of the Report that the New Offer would be "underpinned by new funding transferred from the NHS (£15.393m in 2011/12 and £14.661m in 2012/13)", the use of this being described in Appendix 5. Paragraph 3.5 in Section 3 was as follows:

3.5 Have the main Risk Management and Equality Impact Assessment Issues been considered or concluded and, if yes, what are they and how will they be carried forward to deliver the Council's objectives?

Risk Management and mitigation is an integral aspect of the portfolio's transformation programme. A Risk Board features as part of the Programme's governance. The key risk is that there will be delays in implementing the New Offer leaving the Portfolio unable to meet the savings challenge it has been set. An initial Equalities Impact Needs Assessment (EINA) was included in the report to Cabinet in November 2010 seeking approval to undertake the consultation

115. Section 4 was entitled, "Relevant background/chronology of key events." Paragraphs 4.2 to 4.8 were as follows:

4.2 The proposals put forward by the portfolio to meet the savings challenge between 2011/12 and 2014/15 are set out in appendix 2 of this report. At the core of the plan for making £51.0m of savings in 2011/12, rising to £118.2m by 2014/15 is the introduction of a New Offer for Adult Social Care (New Offer). The New Offer consists of the following components:

An expectation that Citizens will meet their care needs from their own resources and helped through signposting, advice and information.

The Council working jointly with Health and moving its focus on to a universal offer of prediction and prevention together with enablement to keep people out of the care system.

Funded care services only being provided by the Council for the critical needs of people of low means who have no other way of meeting them.

4.3 The outcome of the consultation on the Universal RAS and meeting the budget challenge is set out in appendix 3 of this report. As a result of listening to the views expressed during the consultation period, the initial proposal to raise eligibility criteria to critical personal care only has been changed to take account of the needs of younger adults. It is now proposed that eligibility criteria be raised to meet critical needs only, which includes social and emotional needs, as well as personal care ones.

4.4 The proposed operation of the Universal RAS using the Quickheart computer system is set out in appendix 6, and the Citizens Statement on which funding will be allocated is shown in appendix 7.

4.5 As part of the financial settlement from the government, Birmingham will receive a transfer of funds from the NHS under Section 256 of the NHS Act 2006. This funding is to be spent in agreement with local PCTs and provides £15.393m in 2011/12 and £14.661m in 2012/13. In addition, the Council Plan also makes available £6.0m of capital funding to modernise services through the introduction of Telecare. Discussions have taken place with the PCTs about how this money could be used to support the New Offer and jointly agreed proposals for its use are set out in appendix 5. Both the PCTs and the portfolio recommend that the new funding should be used to develop new approaches to social care to mitigate the impact of the savings, rather than temporarily propping up the existing model.

4.6 Whilst the New Offer places the emphasis on preventing people needing care in the first place, on its own, it will not be sufficient to meet the savings challenge faced by the portfolio. As a result, it is recommended that the Council changes its eligibility criteria for services from the 1^st of April 2011 to meeting those needs which are defined as critical under the Department of Health's guidance set out in 'Putting People First: a whole system approach to eligibility for social care – guidance on eligibility criteria for adult social care in England 2010' . This national guidance grades social care needs into four bands Low, Moderate, Substantial and Critical. In order to be able to meet eligible needs within the funding available to the portfolio, it is proposed that individual budgets will only be available to those people who have a need (or needs)that is defined as critical and have no other means of meeting them.

4.7 The proposed revised eligibility criteria, together with the key principles under which they will operate are set out in appendix 8. Currently, the portfolio meets needs that are defined as critical and substantial. Under the new criteria, substantial needs would no longer be met by the Council and this is expected to affect the services provided to some 4,100 citizens who will be signposted to other services over the next two years as social work assessments are undertaken. It should be noted that no change to the needs being met for a Citizen will take place until after they have been formally assessed.

4.8 In addition to changing eligibility criteria, the portfolio will also need to review the level of fees paid to its providers. The Council plan has set a target of £15.68m to be saved through a review of fees, and permission is sought to achieve this through the introduction of new framework contracts from the 1^st July 2011 as set out in appendix 9.

116. Section 5 of the A&C March Report was entitled "Evaluation of alternative options". It consisted of a single paragraph as follows:

Evaluation of Alternative Options

5.1 Given the demographic changes taking place in Birmingham that are predicted to put greater demand on the Adults and Communities portfolio and the budget challenge that the portfolio faces between 2011/12 and 2014/15, a range of options were considered as part of the RFBC and consultation process. As set out in appendix 2, many of the savings options available to the portfolio have already been factored into the Council's financial plans to meet past pressures and demographic growth in the future.

117. Section 6 of the A&C March Report was entitled, "Reasons for decision(s):". It was as follows:

6.1 Adopting a Universal RAS and the New Offer is key to the delivering of the savings challenge set by Council and meeting future demographic pressures. If the New Offer is not implemented, the Council would face a serious financial risk from overspending care budgets.

6.2 Cabinet approval is sought for the proposed use of funds transferred from the NHS to meet the requirements of the Section 256 transfer to support the New Offer.

6.3 Cabinet approval is required to the revised eligibility criteria and operational principles so that they can be introduced with effect from the 1^st April 2011.

118. Appendix 2 to the A&C March Report was entitled, "Overview of the New Offer". Under that heading the first five paragraphs stated as follows:

The impact of the spending review is such that Adults and Communities have been required to fundamentally review the service offer that it provides to the citizens of Birmingham.

Although the Government has identified £15.363m of new money in 2011/12 to support changes in social care (channelled through the Council by the NHS), on its own it is not sufficient to offset the impact of the savings for the portfolio set out in the Council's 2011/12 Business Plan.

As a result, it is proposed, not simply to reduce the savings required whilst keeping our current model of delivery of adult care, but instead to help deliver a new model of social care. This is because:

1) Although we will receive the full allocation of new funds from the NHS, it does not cover the financial gap which is increasing year on year to £118.2m by 2014/15.

2) More fundamentally, we accept the argument that the current system isn't sustainable and we want to continue to develop new approaches including giving people and communities more power and control. We accept the challenge that the care system should show "more trust in people and communities"

We want to make a new offer that delivers efficiency and quality, building on the Government's recently published "Vision for Adult Social Care". The Council will have a new service offer based on the premise that the vast majority of people can contribute through their own resources and skills to the "care system".

Our new offer will consist of…

- Better universal access to information, advice and signposting.

- Improved preventative services to keep people out of care.

- A funded service for only those of low means to meet eligible needs assessed as critical under current government guidance.

- A more integrated enablement and preventative service with Health.

119. The remainder of Appendix 2 described the outcomes sought by, and other aspects of, the new offer in terms similar to those in Section 3 of the December ASC Consultation (see para 68 above) and the service proposals for the A&C Directorate in Section 4 of the November Business Plan Consultation (see paras 62-64 above).

120. Appendix 3 to the A&C March Report was entitled, "Consultation findings". Section 1 of Appendix 3 was a summary. Among other things, it noted that the December ASC Consultation finished on 2 March 2011, and by the close of the consultation 841 questionnaires had been returned. It continued:

The first question asked whether individuals agreed or disagreed with the setting of a universal RAS. The overall response was that individuals had a very positive new of this (76% agreeing or strongly agreeing);

The second question asked if individuals agreed or disagreed with the publication of a Citizen Statement. The overall response was that individuals had a very positive view of this (86% agreeing or strongly agreeing);

The third question asked individuals how they might prefer to complete a Self-Assessment Questionnaire. The overall response was that individuals (56%) felt that they would prefer to be visited by a social worker who would support them in completing a Quickheart self-assessment;

The fourth question asked individuals what support they might need in using Quickheart to complete a Self-Assessment Questionnaire. The greatest area of support was thought to be from friends and family, but a significant number did not feel that they required any support, with only a minority seeking web access;

The fifth question asked whether individuals agreed or disagreed with the proposal to use any additional funds new money to create a new service offer by working with people and organisations to develop stronger and more supportive communities which will help to keep people out of care (option 2). The overall response was that individuals had a positive view of this (59% agreeing or strongly agreeing); and

The last four questions asked individuals to rate how important they felt were the four elements of the 'new offer'. The overall response was that individuals had a very positive (82%) view of the elements within the proposal.

121. Section 2 of Appendix 3 then went through the nine questions, giving what was described as a "small sample" of the consultation responses, and setting out what the Council would like to say in response. The fifth question identified in the summary had appeared as the first of three consultation questions at the end of Section 3 of the December ASC Consultation (see paragraph 68 above). The question (which was confusingly described in Section 2 of Appendix 3 initially as "Question 2.1" and later as "Question 5") was set out as follows:

Question 2.1 – In 2011/12 we need to find £40m, rising to £107m by 2014/15 to continue to deliver our current adult social care service. Our estimate of the new funds available from the Government is around £30m rising to £39m a year over the next three years.

We can either:

Option 1) Use the new money (£39m per year by 2014/15) to ease the reduction of adult social care funding (£107m per year by 2014/15), or in other words carry on but do significantly less

Option 2) Use the new money (£39m) to create a new service offer by working with people and organisations to develop stronger and more supportive communities which will help to keep people out of care.

We are proposing to support Option 2).

Do you agree or disagree with our proposal to support Option 2)?

122. Having set out the question, Section 2 of Appendix 3 continued:

The intended purpose of question 5 was to openly ask service users, relatives/carers, stakeholders and staff whether they had any views or suggestions regarding the most suitable response to the scale of the spending reductions.

Question 5 is comprised of a "strongly agree – agree – disagree – strongly disagree – do not have a view" multiple choice range and a comment box. The multiple choice part of the question was completed on all but 70 of the questionnaires returned.

19% of individuals responding "strongly agreed" and 40% "agreed" with the proposal to support Option 2;

Of the 313 respondents who identified themselves as 'service users', 61% of them supported the proposal

Of the 66 respondents who identified themselves as 'providers', 80% of them supported the proposal

…

123. Section 2 of Appendix 3 then gave an "indicative selection" of responses to this question. Only one of the "indicative selection" was positive. It was in these terms:

We all must live the values of the Big Society. It is by communities looking after their own that some of the short falls in service delivery as a result of the cuts will be addressed in the future. Local community groups have a major role to play.

124. The remainder of the "indicative selection" of responses were either critical or neutral. The critical responses set out in the "indicative selection" included:

Your preferred option (Option 2) has been put forward as a new approach to the way care is going to be provided, but it is vague outline lacking in substance & without any concrete examples of voluntary organisations or charities that might fill the gap left by the withdrawal of services to all except those in the critical band. This experiment featuring community groups & charitable organisation taking over services previously run by social services is going to hit the most vulnerable harder than other citizens.

In principal a nice idea, but realistically you don't have the time to implement wide spread changes effectively.

I don't fully understand Option 2 proposal. How much it will cost to set up and how it will work because of the vagueness. I would need more details of the actual option.

The Council makes clear that it favours option 2, but we believe that the assumptions that 'new ways to meet need' will automatically emerge are simply too optimistic. In fact we would argue that certain areas of the third sector actually contradict what is proposed in option 2. We are concerned that the kind of services that vulnerable older will need will simply not be there in the short term. Similarly the assertion the Council will work more closely with Health sounds eminently sensible, but all of our experience tells us that we cannot assume that this will happen quickly. If the Council is determined that option 1 is not feasible in the long term, we would prefer that alternative care arrangements in the community and partnership working with the health service are established before any substantial changes to adult social care services are embarked upon.

125. Under the heading "What we would like to say in response," Section 2 of Appendix 3 said this:

We have heard three key messages and after listening to the responses to the consultation we have amended our proposal to make it quite clear that the definition of 'critical' would apply to anyone whether they are elderly, disabled or have mental ill health, if they have needs that fall within these criteria. The descriptions in the document were designed to pick up all needs, not just personal care. This includes people who may have a learning disability, people with mental health problems as well as people with physical disabilities or sensory impairments.

The second key message we heard during the consultation, when it quickly became apparent that people were very concerned about the possibility of amending the Fair Access to Care Services (FACS) criteria to 'critical' only. In support of the eligibility framework definitions which had been published in the glossary to the consultation document, "Fair access to care services: Birmingham's proposed eligibility criteria for social care funding from April 2011" (see Appendix 8) was published on the web and distributed to meetings from early February.

The third was the very real concern of 'what does this mean for me?' as well as a desire for clarity as to the meaning of 'critical'. At the various meetings that were held throughout the City to support individuals to respond to the consultation, it was made clear that were Cabinet to approve the proposal to publicly fund care for those meeting the 'critical' criteria only, then this would mean that following a review with a social worker, care for those whose care needs did not meet 'critical' would no longer be financially supported by the City Council. We have not consulted on the review methodology because we are not envisaging any change to current practice. However, we have in the past published such methodologies and looked for external scrutiny of our performance. We intend to follow this practice again and may well look to work with users and carers to detail the way forward.

126. What was described in Section 1 of Appendix 3 as "the last four questions" were grouped together in Section 2 of Appendix 3 and described as "Question 6" as follows:

Question 6 – Within the resources we have available our plan is to provide the following offer:

a) Information, advice and signposting available to everyone, fostering strong and supportive communities that value the contribution each of their citizens can make;

b) Preventative and enablement services – to keep people as independent as possible for as long as possible;

c) Individual budgets for people whose personal care needs are critical, based on a Universal Resource Allocation System, and subject to financial assessment; and

d) Closer working with Health to keep people out of care and help them stay independent in their own home.

127. Having set out question 6, Section 2 of Appendix 3 continued:

The intended purpose of question 6 was to openly ask service users, relatives/carers, stakeholders and staff how important they felt the four elements of the 'new offer' were.

Each element of question 6 is comprised of a "very important – important – not important – do not have a view" multiple choice range and a comment box.

41% of individuals responding felt that information, advice and signposting was "very important" and 34% felt that it was "important" (this question was unanswered by 76 respondents);

56% of individuals responding felt that preventative and enablement services were "very important" and 33% felt that it was "important" (this question was unanswered by 56 respondents);

40% of individuals responding felt that individual budgets for those whose care needs were critical was "very important" and 40% felt that it was "important" (this question was unanswered by 79 respondents);

55% of individuals responding felt that closer working with Health was "very important" and 30% felt that it was "important" (this question was unanswered by 67 respondents).

128. Section 2 of Appendix 3 then set out an "indicative selection" of responses. The "indicative selection" for item c) was as follows:

I am extremely concerned about your proposals to give everyone a cash budget, to ignore the impact of specific disabilities & complexities in assessment & to require vulnerable customers to do their own self assessments with no commitment on your part as to how much cash you are prepared to spend supporting them in this.

I can't see this working e.g. presumably 'critical' means dead in 6 months – it takes 14 months to get a Social Worker!

People with learning disabilities with assessed "substantive" needs – what support will these people get? And who from? At what cost? With no support – substantive care easily becomes critical.

Obviously if; there is to be less money available substantial will need to move to critical but people with substantial needs will need to be signposted for other help i.e. from charities etc.

If you understood the elderly you would know those most in need are not capable of utilising an individual budget. Is this a cynical way of offering help and saying it is not needed as it has not been taken up?

We are seriously concerned that the City Council appears to be proposing to restrict its duties to safeguard vulnerable adults who are at risk of abuse to only those people assessed as having critical social care needs. This contradicts the City Council's policy of protecting all vulnerable adults. If the Council are only considering adults who are eligible for services people with 'substantial' needs would be left without the protection from abuse afforded by the 'No secrets' guidance. We feel that this will leave many Birmingham citizens with very high risk needs without protection.

I do not need help with personal care, I need my day centre. According to your book I would not get help. I do not think this new system is fair on people like me.

129. Section 2 of Appendix 3 then set out what the Council would like to say in response. As regards item c), it said:

Throughout the consultation a smaller majority of respondents felt that individual budgets for those whose care needs were critical was "very important" or "important". Potentially the largest impact of the proposed new offer would be the change to the Fair Access to Care Services (FACS) criteria, by restricting local authority funding for care to those with critical needs only. The guidance clearly states that:

"Councils should ensure that in applying eligibility criteria to prioritise individual need, they are not neglecting the needs of their wider population. Eligibility criteria should be explicitly placed within a much broader context whereby public services in general are well placed to offer all individuals some level of support. Foe example, people who do not meet the eligibility threshold should still be able to expect adequate signposting to alternative sources of support. Such arrangements will improve outcomes for the wider population and could help some individuals avoid or delay having to rely on health or social care services for support."

This is why the proposed vision looks to improve information and advice, to continue investment in prevention and enablement and to work more closely and effectively with Health partners.

130. The third consultation question at the end of Section 3 of the December ASC Consultation provided an opportunity for respondents to make other comments. Section 2 of Appendix 3 to the A&C March Report gave an "indicative selection" of such additional comments, including the following:

This questionnaire gives statements that are positive and any care provider would agree with them as they can all be delivered within any care service if the philosophy behind the services encompasses personalisation, choice, independence etc. In order for things to improve the City Council has to work with care providers and incentivise us to develop new services that meet the aspirations of people who receive care services.

What about those in the substantial bands who are unable to carry out most of their personal care or domestic routines? What crumb of comfort have you offered them when you say that the community and voluntary sector will be engaged to provide support to signpost them beyond this threshold to services that meet their care needs? Where are these imaginary organisations? There is no doubt that this will cause great anxiety among vulnerable adults especially at a time when grants to voluntary organisations are being reduced. And as to your promise that you exist to ensure the quality of life for all citizens, I don't know who you think is daft enough to believe that, after they have read your Vision of Adult Social Care in Birmingham. Already it has become evident that financially the most vulnerable are going to have more expense imposed on them. By cutting the Housing support grant for flat cleaning to residents in Extra Care unable to do it themselves, they will be financially worse off to the tune of £55.00 per month after the 1^st April according to current cleaning charges at Pineapple Place. Is this the future of what we can expect from the supposedly 'fair society'.

The document is too vague Option 1 is clear enough but won't deal with the short fall. Option 2 reads like a 'Brain Storming' session without any real clarity or depth. It can be interpreted in so many ways that it is not understandable and the Service Users are really just worried that their funding (if they are getting it at the moment) will be cut.

It seems to me that you just want us to agree with you. Is this consultation going to make any difference to your proposals and then your decisions? I suspect not. How much has this cost? I thought you wanted to save money. There is not enough information. Who is going to provide the care? Who is going to decide if care is needed? How much is a person going to have to pay? This consultation and cutting of money and services is very worrying for people in my position. Without carers I would have to spend my whole life in bed and dare say there are lots of other people in my position. If you are not in that position then you have no idea how it feels and how worrying it is to receive this documents. As far as all of this reliance on computers – that too worries me a) not everyone has access to a computer b) we have heard lots of instances of personal data being lost and getting into wrong hands c) computers systems are known to fail d) tick boxes etc do not give enough information on very specific needs.

I am very disturbed by the plan to restrict care to only those judged to be in critical need. Many people who have substantial needs may just fall short of the critical criteria and under these proposals will be left without care and will suffer greatly. The whole plan is a political one and is based on the deluded idea that everyone can stay fit and well indefinitely. It is not realistic or humane and is based on means and lack of compassion by the government and Birmingham City Council. I'm deeply shocked that the council is even considering making changes that will cause considerable hardship and suffering to its citizens. By cutting the care budget or limiting what care is available. A society is judged by how it treats the most vulnerable in society.

131. As explained in paragraph 3.3 of the A&C March Report, Appendix 4 comprised a summary of a full EINA on the impact of the proposals in the report. The first two paragraphs of Appendix 4 were as follows:

This Appendix summarises the EINA and considers the following equality strands:

Gender

Race

Disability

Religion or Belief

Sexual Orientation

Age

As an overview, 60% of current service users already have a Fair Access to Care Services (FACS) banding of 'critical'. Almost 30% of service users (4,200 individuals) have a recorded FACS banding which is not 'critical'. A further 10% of service users (1,200 individuals) do not have a recorded FACS banding.

'A Vision for Adult Social Care in Birmingham' [i.e. the December ASC Consultation] has a number of strands which could impact upon the community:

1. the proposed introduction of a 'Universal' Resource Allocation System;

2. the proposed introduction of the 'Quickheart' on-line system; and

3. the potential change to the FACS criteria

With regard to the RAS we have used age as a broad proxy to differentiate between services such as older adults (service users aged over 65 years) and learning disabilities, physical disabilities and mental health (service users aged under 65 years).

132. Appendix 4 to the A&C March Report went on to discuss each equality strand. In relation to disability it said this:

1 – As a social care service we do not record medical diagnoses of 'disability'. There is a definition of "disability" provided by the Disability Discrimination Act 1995:

"…a physical or mental impairment which has a substantial and long-term adverse effect on his [sic] ability to carry out normal day-to-day activities,"

and while ageing would not qualify as a disability under the legislation, there is a question to be asked about whether frailty does not impair the ability to carry out normal day-to-day activities. It is possible that older people may well benefit from the introduction of a 'Universal' resource allocation system. The proposal regarding a 'Universal' resource allocation system is however intended to remove any inequality which may exist when a number of resource allocation systems have been developed for specific ages and disabilities. The notional 'benefit' and 'disbenefit' would also be minimal because the majority of all service users have not had an assessment based on being provided with an Individual Budget through a resource allocation system.

2- It was appreciated early in the consultation that the Quickheart system would be an unknown quantity to many people, so arrangements were made at the four Care Centres to have the test version of the system available so that individuals could see for themselves how the system might operate and the way in which the questions might be posed.

The information received from questions three and four highlights the amount of work there is to be done in conveying the practical advantages of the system, but also gives us a clear indication of some of the very real and practical barriers which citizens currently face.

With regards to introduction of the Quickheart on-line self-assessment questionnaire, we need to work with other providers such as the Housing Directorate to establish an action plan to allow the 'channel shift' to be successfully introduced. Housing have much relevant experience from the introduction of Choice Based Lettings.

3- Overall, 60% of all service users currently have a FACS banding of 'critical'. This is higher (75%) for service users noted as having a learning disability and the same for service users with a physical disability and mental health issues. If the recommendation to amend the FACS criteria was approved, no-one's care would be changed without a social work assessment. This is an individual assessment and could result in an individual's FACS bandings being moved from 'substantial; to 'critical' for example. Any differential will be reviewed if and when any process of review takes place.

133. After dealing with other equality strands, Appendix 4 to the A&C March Report had a section entitled, "Action planning." This said that two broad action plans were proposed. In the first, the A&C Directorate would need to establish and communicate a clear vision of the "new offer". In doing so, the Directorate would follow guidance in paragraphs 108 and 109 of Prioritising Need (see paragraph 31 above). In the second, the Directorate "would need to establish an awareness raising and engagement plan…".

134. In the remainder of Appendix 4 to the A&C March Report there was a discussion of whether the consultation responses received had been representative of service users. In relation to age, while 55% of service users were aged over 75, only 37.4% of respondents fell into that age group. After setting out data for gender and ethnicity, Appendix 4 concluded that the respondents to the questionnaire were broadly representative of the current service user base, adding:

The exception could be the over 75 years age group. This may not have created any bias but should be noted.

135. As noted earlier, paragraph 3.4 of the A&C March Report referred to the New Offer being underpinned by new funding transferred from the NHS. In this regard a note entitled, "Transferring Social Care Monies and the Operating Framework: A Proposed Approach for Birmingham" was set out at Appendix 5B. This was said to have been "amended from a meeting" of NHS chief executives, their representatives and the A&C Directorate on 21 January 2011. Appendix 5A said that the note had been added to the documents on the public consultation website. Appendix 5B noted that the meeting on 21 January 2011 had agreed to proceed on the basis of what was described as "Option Four." This would involve the two grants that were to be transferred from the NHS (£15.393m and £3.848m), along with money identified for enablement (£3.562m), other new monies, and capital from prudential borrowing by the Council to be used in conjunction with the prioritisation of "areas of particular focus where health and care improvements would have a substantial bearing upon the ability of citizens to live independently in community settings, in turn reducing spend patterns (Continence, Stroke Care)". It was noted that the December ASC Consultation had identified [as Option 1] the use of new monies to produce a net reduction in the planned budget savings, with doubts about whether this was sustainable. The alternative approach was to focus on achieving and mitigating reductions, with less emphasis on offsetting social care budget reductions and more of a shift towards new, primarily preventative, approaches. It was acknowledged that there were doubts that some of this was untested, both in terms of the evidence to back decision making and perhaps more importantly in the behaviours that support this from all partners. This alternative gave rise to what was described in Appendix 5B in this way:

Proposed Principle Three: The use of monies should be focussed towards a new offer with a clear emphasis on investing in prevention and that sustaining the current system is not possible within the resource settlement across health and care. All partners need to support this from top to bottom, with consistent constructive behaviour

136. Appendix 6 to the A&C March Report dealt with the adoption of the "Universal RAS". This appendix contained considerable detail about the Quickheart software, including its use of an algorithm, and mention of circumstances where the RAS would be no more than a "useful starting point" or, in the case of people who require two carers, unsuitable.

137. Appendix 7 comprised a "Citizen's Statement 2011/2012", giving a breakdown of the plans for a decrease in 2011/2012 by comparison with the preceding year in the total funds available for individual budgets from £197.1m to £157.7m, an increase in the total funds not included in individual budgets from £96.1m to £112.1m resulting in an overall decrease in the total budget for Adults and Communities so that the total spending would decline from £293.2m in 2010/11 to £269.8m in 2011/12. Appendix 8A contained an explanation of the Council's proposed eligibility criteria for social care funding from April 2011. It set out the eligibility criteria in a table. Column 1 of the table referred to keeping people safe, healthy and free from harm where without support from community care services abuse or neglect has occurred or will occur. However column 2 of the table identified in this regard that steps would be taken by the Council to protect vulnerable people who were facing harm or exploitation as a result of "serious" abuse or neglect.

138. Appendix 8B to the A&C March Report said that in order to deliver the proposals set out in the New Offer there were policies that needed to be agreed. The remainder of Appendix 8B set out the policies and included the following:

1. Managing the transition to 'critical' only

In order to apply new eligibility criteria there will need to be an assessment of individual needs for new people or a reassessment of individual needs for people already getting services. Where a person has some critical needs and some needs that fall below critical, it will only be those needs that are critical that will be eligible for funding from the Council. However, to assist people who have substantial needs to become more independent access may be provided to short term enablement services which would assist to maximise their independence. During this enablement period assistance and advice would be provided about the full range of services available to support them or for them to buy themselves.

…

3. Choice

Once the individual budget has been calculated and a support plan agreed which can be funded from the individual budget the council will not increase that amount unless there is a change in the person's circumstances or their needs increase.

This means that a person cannot choose to access a service that is more expensive than the council would expect to pay for, unless they are prepared to pay the difference themselves.

This includes the following:-

…

Choosing to remain at home when the cost of doing so would exceed the amount the council would expect to pay for the care at home or when the care in a residential establishment can be purchased within the individual budget.

139. The A&C March Report referred in paragraph 4.8 to a need to review the level of fees paid to providers, with a plan to save £15.68m through the introduction of new framework contracts. Appendix 9 explained what was proposed in this regard.

Available background papers

140. Background papers to the A&C March Report were not circulated, but were available to members of Cabinet to examine if they wished to do so. Among them was the "full EINA" referred to in paragraph 3.3 and Appendix 4 of the report. I shall call it the "ASC EINA". An introductory section explained that the ASC EINA identified the purpose of the proposed policy, the types of individual it affected, and the equality strands affected. For each of the relevant equality strands sections on Impact, Consultation, and Additional Work would result in a Priority Ranking and an Impact Ranking. The Priority Ranking would provide a score between 1 (lowest) to 5 (highest) showing the level of priority, with reference to equalities, the activity had for the organisation. The Impact Ranking would provide a high, medium or low ranking showing the potential differential impact on individuals within each of the equality groups. If an assessment had raised issues to be addressed there would also be an action planning section.

141. Section 3 of the ASC EINA was entitled, "Relevant Equality Strands". It began by setting out priority and impact ratings. A table for priority ratings showed Disability as having a priority of 4. This was equal to the priority for Gender and Race, and one greater than the priority of 3 shown for Religion or Belief, Sexual Orientation, and Age. The impact rating shown for Disability was "High". This was one level higher than the impact rating of "Medium" shown for Gender, Race and Age, and two levels higher than the impact ranking of "Low" shown for Religion or Belief and Sexual Orientation.

142. Section 3.3 of the ASC EINA dealt with Disability. Section 3.3.1 identified that both as regards benefits to individuals and as regards disadvantages to individuals the proposed policy might have a significant differential impact, i.e. it might affect individuals with different kinds of disability in significantly different ways because of their disability. A "comment" section in this regard set out what appeared as Item 1 in the discussion of the Disability strand in Appendix 4 to the A&C March Report (see paragraph 132 above). The remainder of the comment section noted that any proposed change to social care activity would have an impact upon individuals with different kinds of disability, because of their disability, in as much as they accessed social care services. It continued:

In some cases, the Council's equality duties require the Council to have due regard to the need to treat some groups more favourably than others, such as section 49 of the Disability Discrimination Act 1995 which sets out the Council's general duty in relation to disability discrimination.

With regards to the proposal for a 'Universal' resource allocation system, this is however intended to remove any inequality which may exist when a number of resource allocation systems have been developed for specific ages and disabilities. The notional 'benefit' and 'disbenefit' would also be minimal because the majority of all service users have not yet had an assessment based on being provided with an Individual Budget through a resource allocation system.

With regards to the potential change in FACS criteria:

1 – of all service users, 62% currently have a recorded FACS banding of 'critical'. 29% of service users (4,200 individuals) have a recorded FACS banding which is not 'critical'. A further 9% of service users (1,200 individuals) do not have a recorded FACS banding.

2 – 74% of adults noted as having a learning disability have a FACS banding of 'critical.' 498 adults noted as having a learning disability do not currently have a FACS of 'banding critical' and a further 126 have no recorded FACS band.

3 – 62% of adults noted as having a physical disability or an acquired brain injury have a FACS banding of 'critical'. 1,005 adults noted as having a physical disability or an acquired brain injury do not currently have a FACS banding of 'critical' and a further 149 have no recorded FACS band.

4 – 58% of adults as having mental health issues have a FACS banding of 'critical'. 175 adults noted as having mental health issues do not currently have a FACS banding of critical and a further 136 have no recorded FACS band.

143. Section 3.3.2 of the ASC EINA gave an assessment of the proposed policy in meeting the needs of individuals with different kinds of disability. This was "2 – At expectations." Two pieces of evidence were relied upon in support of this conclusion. The first was that as regards the "Universal" RAS, 79% of those who identified themselves as service users either "strongly agreed" or "agreed" with the proposal. The second was that as regards the "new offer", 65% of those who identified themselves as service users either "strongly agreed" or "agreed" with the proposal. An item that was identified as needing highlighting was set out as follows:

Section 49 of the Disability Discrimination Act 1995 sets out the Council's general duty in relation to disability discrimination. The Council's duty is to have 'due regard' to the need to: eliminate unlawful discrimination and victimisation of disabled people, eliminate harassment of disabled people, promote equality of opportunity between disabled persons and other persons, promote positive attitudes towards disabled persons, encourage participation by disabled people in public life, and to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than others.

The Council's 'due regard' takes the same shape as guidance detailed within "Putting People First: a shared vision and commitment to the transformation of Adult Social Care" inasmuch that both "Birmingham City Council Business Plan 2011+" and "A Vision for Adult Social Care in Birmingham" seek to invest in:

Universal services – the general support available to everyone within their community including transport, leisure, education, employment, health, housing, community safety and information and advice.

Early Intervention and prevention – helping people live at home independently, preventing them from needing social care support for as long as possible and potentially creating future cost efficiencies.

Choice and control – giving people a clear understanding of how much is to be spent on their care and support and allowing them to choose how they would like this funding to be used to suit their needs and preferences.

Social capital – fostering strong and supportive communities that value the contribution that each of their citizens can make.

144. Section 3.3.3 explained how views had been obtained from service users with different kinds of disability.

145. Section 3.3.4 was headed "Disability – Additional Work." It comprised a table listing seven questions. The first was whether any more information was needed to complete the assessment – the answer was "No." The second was whether any more work was necessary to complete the assessment – the answer was "No." The third question asked whether the proposed policy would "have a role in preventing individuals with different kinds of disability being treated differently, in an unfair or inappropriate way, just because of their disability." The fourth question asked whether the proposed policy could assist individuals with different kinds of disability to get on better with each other. The fifth question echoed Section 49A (1) (d) – it asked whether the proposed policy would take account of disabilities even if it meant treating individuals with different kinds of disability more favourably. The sixth question echoed Section 49A (1) (f) – it asked whether the proposed policy could assist individuals with different kinds of disability to participate more. The seventh question echoed Section 49A (1) (e) – it asked whether the proposed policy could assist in promoting positive attitudes to individuals with different kinds of disability. The answer given to all these questions was "No."

146. Section 5 of the ASC EINA was headed, "Action Plan". As regards Disability, Section 5.4 identified two issues. The first issue was expressed in this way:

Action

We need to establish and communicate a clear vision of the 'new offer':

a) Information, advice and signposting available to everyone, fostering strong and supportive communities that value the contribution each of their citizens can make;

b) Preventative and enablement services – to keep people as independent as possible for as long as possible;

c) Individual budgets for people whose community care needs are critical, based on a Universal Resource Allocation System, and subject to financial assessment; and

d) Closer working with Health to keep people out of care and help them stay independent in their own home.

so that this can be made 'real' to service users, carers, stakeholders and partners. In doing so, we will follow guidance as published in:

"Prioritising need in the context of Putting People First: A whole system approach to eligibility for social care":

109. Councils should exercise considerable caution and sensitivity when considering the withdrawal of support. In some individual cases, it may not be practicable or safe to withdraw support, even though needs may initially appear to fall outside eligibility criteria. Councils should also check any commitments they gave to service users of their carers at the outset about the longevity of support provided. If, following a review, councils do plan to withdraw support from an individual, they should be certain that needs will not worsen or increase in the short term and the individual become eligible for help again as independence and/or well-being are undermined.

108. It may well be that someone who is found ineligible following assessment may still benefit considerably from effective support planning and signposting to more universal sources of support such as aids or different housing options. If individuals need other services, councils should help them to find the right person to talk to in the relevant agency or organisation, and make contact on their behalf.

Resources Communications resources

Timescales Three months from Cabinet decision

Lead Officer Joint Director of Public Health for Birmingham

147. As regards this first issue, the ASC EINA proposed action as set out in the first broad action plan in Appendix 4 to the A&C March Report (see paragraph 133 above).

148. The second issue identified in Section 5.4 of the ASC EINA was that the Quickheart online self assessment tool needed to be user-friendly for a wide range of abilities. In that regard the action proposed was as set out in the second broad action plan described in Appendix 4 to the A&C March Report (see paragraph 133 above).

The Cabinet meeting on 14 March 2011

149. When Cabinet met on 14 March 2011 the A&C March Report was dealt with in public session. Mr Hay made a presentation which he described in his first statement:

73. I gave a presentation to the meeting highlighting for members a number of areas of important points, most of which had emerged during the consultation process and from which we had learned.

(i) I explained the new eligibility criteria. They were not to apply to the proposed spending on universal services for the provision of information and third sector support or to the new investment in prevention schemes. Enablement services would be offered at substantial and critical levels. Eligibility for long term care, however, would be confined to critical needs only and offered as an individual budget. These refinements had emerged from the consultation process.

(ii) I confirmed that all matters related to safeguarding people from harm will be determined by an assessment of risk not eligibility. This had been an issue of particular concern to people in the consultation.

(iii) I confirmed that it had never been intended that the self-assessment element of the assessment process under Quickheart would determine resource allocation, i.e. I confirmed that an assessment by trained social workers would be required as before. ...

(iv) I confirmed, in response to concerns about the assessment process, that we would develop a transparent process and have a system of moderation (i.e. a system, as we presently have for the existing RAS process, in which the amount calculated by the RAS assessment and formula is subject to re-consideration by social workers in order to ensure that the individual budget is in fact sufficient to procure the services which the service user requires …).

(v) I confirmed that we recognised that day care for younger adults offered vital carer respite and support, albeit that better usage of the full resource was still needed, an issue which had come up in consultation responses, i.e. people were anxious that we would be closing day centres, which we were not. Rather, we were saying that there was further work on efficiency and effectiveness to be done.

(vi) I accepted that we needed to develop the offer in relation to the provision of information.

(vii) I explained the manner in which we had addressed the needs of the third sector.

(viii) Finally, I set out our desire to work with citizens to develop our offer and to make sure that we had ways of ensuring ongoing engagement and consultation. In part, this was because we had recognised throughout the consultation process and during the preparation of the EINA … that our expectation of the impacts of the new offer was based particularly upon the information we held in existing case files, such as the statistical breakdown of figures for numbers and proportions of service users falling into different categories, including the numbers and proportions in the various existing eligibility bands. We were well aware, for example, that many existing service users had not been assessed for the purposes of deciding which band they were in; there were also some who had been assessed and provided with services but were found to have only moderate needs. Accordingly, until we had carried out further assessments we would not have a more complete picture of the impacts; our approach therefore was that as more information emerged we would need to review the impacts and possibly conduct a further EINA. It was a continuing process.

74. The presentation included a summary of the two options set out in the consultation. I recommended approval for Option 2. …

150. After the presentation, and a debate lasting approximately 75 minutes in the course of which Mr Hay answered questions, Cabinet took the decisions recommended in the A&C March Report. On 18 March 2011 those decisions were confirmed following the expiry of the period in which the Overview and Scrutiny Committee could have called them in. It did not do so.

Legal principles as to the application of s 49A

151. There is extensive case law on the proper interpretation of s 49A. It is unnecessary for me to analyse that case law. It was common ground that, taken together with the Code of Practice (see para 21 above) and relevant guidance, its effect was accurately summarised in a series of propositions set out in the claimants' speaking note. It does not follow that by agreeing with the propositions the Council was accepting what the claimants said about their application to this case. With that rider the agreed propositions were:

To what decisions does the duty apply?

i. The duty applies to all decisions taken by public bodies, including policy decisions and decisions on individual cases;

ii. The duty 'complements' specific statutory schemes which may exist to benefit disabled people;

iii. The disability equality duty is at its most important when decisions are taken which directly affect disabled people;

iv. The duty requires public authorities to take action to tackle the consequences of past decisions which failed to give due regard to disability equality;

v. The duty requires the circumstances of the full range of disabled people to be taken into account and may require certain groups of disabled people to be prioritised, for example on the basis that they experience the greatest degree of exclusion;

What does the duty entail?

vi. The equality duties impose 'significant and onerous' obligations on public bodies in the context of cuts to public services;

vii. 'Due regard' means specific regard by way of conscious approach to the specified needs;

viii. Due regard requires analysis of the relevant material with the specific statutory considerations in mind;

ix. General awareness of the duty does not amount to the necessary due regard, being a 'substantial rigorous and open-minded approach';

x. In a case where the decision may affect large numbers of vulnerable people, many of whom fall within one or more of the protected groups, the due regard necessary is very high;

xi. The duty (and in particular DDA 1995 s 49A(1)(d)) may require positive steps to be taken if the circumstances require it to address disadvantage to disabled people;

xii. Thus, if changing a function or proposed policy would lead to significant benefits to disabled people, the need for such a change will carry added weight when balanced against other considerations;

xiii. Similarly, if a risk of adverse impact is identified, consideration must be given to measures to avoid that impact before fixing on a particular solution;

xiv. Impact assessments must contain sufficient information to enable a public authority to show it has paid due regard to the duty and identify methods for mitigating or avoiding adverse impact;

When must 'due regard' be given to the duty?

xv. Due regard must be given before and at the time that a particular policy that will or might affect disabled people is being considered by the public authority in question;

xvi. As such due regard to the duty must be an essential preliminary to any important policy decision, not a rearguard action following a concluded decision;

xvii. Put another way, consideration of the duty must be an integral part of the formation of a proposed policy, not justification for its adoption

xviii. The duty is continuing and is engaged at all stages of a decision-making process, meaning that further consideration to the duty may be required where new information comes to light;

Who needs to pay 'due regard'?

xix. The duty is non-delegable and is owed by primary decision-makers;

xx. Decision-makers must be properly informed of the nature and extent of the duty at the time relevant decisions are taken;

xxi. In particular, decision-makers need rigorous and accurate advice and analysis from officers, not 'Panglossian' statements of what officers think members want to hear;

What is the role of the Court?

xxii. The Court must review whether 'due regard' has been paid, not merely consider whether the absence of due regard was Wednesbury unreasonable.

152. As to the Council's practical ability to take action, I was provided with extensive material on local government finance and a report of Mr Adrian Waite, an independent financial consultant commissioned by the claimants. I do not need to set this out, however: the Council's evidence acknowledged that if adult social care had been given priority over other areas the money could have been found to continue the current eligibility criteria.

Issues of fact as to the Council's approach

153. At the outset of this judgment I observed (see para 3 above) that the starting point for the Council's answer to the challenge was that the proposed change was a matter of high policy, while the complaints about it turned on matters that largely concerned "petty bureaucracy, at quite a low level." This observation was based on remarks by Mr Arden at the start of his oral submissions in answer to those of Mr Wise for the claimants. When it came to oral submissions in reply Mr Wise submitted that this "dismissive" comment gave insight into the Council's approach to this matter. It would in my view be quite wrong to regard what was said by Mr Arden as of itself giving rise to any basis for criticism of what was done or not done by the Council. As the claimants' speaking note had already recognised, an important part of the Council's answer to the challenge was an assertion that the claimants were seeking an impossible level of detailed consideration by way of "due regard" under s 49A. Mr Arden was doing no more than highlight this answer in particularly graphic language.

154. Mr Arden has persuaded me that certain other arguments advanced by the claimants are not made out. Particular mention should be made of the following:

i) I accept that Mr Hay and other senior officers of the A&C Directorate did not intend to restrict the criteria so that only personal care needs would be eligible for support. It was entirely proper for the claimants to draw attention to the numerous occasions both before and after the February Supplementary Information when it was said that the proposal involved a move to restricting eligibility to critical personal care needs. Those references are explicable as mistakes on the part of those preparing material under pressure of time and repetition by others of what had appeared in the mistaken material.

ii) I also accept as regards the November Business Plan Consultation and subsequent material that Mr Hay and other senior officers of the A&C Directorate were working on the basis that the head of savings proposed to amount to £33.2m in 2011/12 should comprise £17.5m from the New Offer (including the move to "critical only") and £15.7m as was eventually explained in late February 2011 when Business Plan 2011+ was published. The claimants are right to say that the evidence in these proceedings does not appear to disclose any earlier occasion on which information about the figures which underlay the £33.2m was made public. However the wording used in previous documents, although it gave no assistance as to how in money terms the £33.2m had been calculated, could be read as consistent with the New Offer being only part of the £33.2m. When the matter was confirmed in a third witness statement of Mr Dransfield on behalf of the Council the claimants, entirely properly, did not seek to challenge the factual position further in this regard.

iii) Turning to the Cabinet meeting of 14 March 2011, I accept that Cabinet was not bound by the decision of 1 March 2011 and could still have decided that more needed to be done and spent. I also accept that if Mr Hay had thought that the expenditure targets were insufficient for the discharge of the Council's statutory duties under s 49A he would have advised Cabinet to recommend to the full Council that further spending resources be allocated to the Directorate (even if they had to come from other budgets or from reserves).

The remaining issues

155. My discussion of the issues below begins by considering whether s 49A was complied with. Here it is convenient to take as issue (1) the consideration given by the Council for the purposes of s 49A to the proposal that "substantial" needs should no longer be eligible needs, and instead eligibility would arise only for those needs which were assessed to fall into the "critical" band. I refer to this below as the move to "critical only." I then turn to (2) consideration for the purposes of s 49A of other aspects of the proposed changes to the provision of adult social care; (3) general administrative law principles of "illegality" as a ground of challenge; (4) alleged failures of consultation and (5) human rights considerations.

(1) Move to "critical only": s 49A consideration

156. The principal contention of the claimants that I deal with in the context of the move to "critical only" concerns agreed propositions viii, ix, x and xxi above. The claimants submitted that the minimum required for due regard was to consider whether savings could have been found in other areas to prevent the need to reduce spending on adult social care. Far from providing an analysis of this, said the claimants, the papers going to members did not include the relevant EINA, and even if members had sought out the relevant EINA it lacked analysis of the impact of the decision sufficient to enable members to pay due regard to the matters identified in s 49A. The generalized awareness of the duty which members may have had was insufficient for due regard.

157. Mr Wise noted that the initial position of the Council in November 2010 (not a position adopted by the claimants) had been that the introduction of a Universal RAS was not thought to have an adverse equality impact, but this was in the context of an assessment which did not involve a move to "critical only" (see para 56 above). As to the impact of moving to "critical only", Mr Ally's report (see para 57 above) had noted the risk of significant consequences, identifying as potential impacts increased stress for both carers and recipients of care, basic needs being likely to go unmet, increased depression and mental illness, and a risk of abuse increasing over time – a feature being that withdrawing support for substantial needs may lead to critical needs developing. That report had been prepared in November 2010, at a time when lack of detail on what the proposals actually meant for individual services had the consequence that the report was "necessarily high level and generalised." However Mr Ally said that it "should be possible to refine and focus this in due course as required." That, however, did not happen. The material prepared for the meetings on 1 and 14 March did not give members even the broad assessment of potential impacts of the kind found in Mr Ally's report, let alone the refined and focused assessment which Mr Ally said could be produced in due course as required. The consultation had not involved any attempt to look at the practical detail of what the move to "critical only" would entail. While consultees had drawn attention to the lack of detail, and the Council's own EINA Manual stressed the need to examine alternatives, relevant passages in Business Plan 2011+ merely gave an aspirational account of measures to mitigate the impact of the move to "critical only."

158. Specifically in relation to the February Supplementary Information the actions identified were merely (i) to establish and communicate the New Offer effectively and (ii) to establish an "awareness raising and engagement plan." There was no analysis of how and to what extent any mitigation measures would be effective in addressing adverse impacts. In particular, there was no consideration of the extent to which alternative resources in the community would be available for those with substantial needs, and no other steps to mitigate the impact on disabled people were identified.

159. As to the Corporate EINA, the claimants noted that it acknowledged that there might be a significant impact due to the disadvantage caused to individuals with different kinds of disability, and that some figures were given as to the numbers and percentages of affected people. However the comments about the Section 49A duty did not address the impact of the new policy. As with the February Supplementary Information, the action plan concerned establishment and communication of the New Offer. The Corporate EINA identified one particular step by way of mitigation – approaching withdrawal of services sensitively – but there was nothing else to mitigate the effects of the policy. Moreover there was no evidence that any decision maker saw the Corporate EINA, and the inference must be that they did not.

160. As regards the material set out in the A&C March Report, the presentation made by Mr Hay on 14 March 2011, and the ASC EINA, the claimants made similar points. Overall, there had been a failure to provide any rigorous assessment, a failure to consider the extent of adverse impacts, a failure to identify tangible actions to deal with potential adverse impacts, and a failure to consider the relative merits of alternative approaches.

161. As noted in paragraph 3 above, the Council's oral submissions characterised the present claim as "a micro challenge to a macro decision." In this case Birmingham was dealing with macro questions of policy, but the claimants had failed to locate the challenge in that context. This led to a number of introductory points:

i) Mr Hay had achieved distinction in the fields of social care and housing. He is now president of the Association of Directors of Adult Social Services. He and other professionals were trying to cope with a desperately serious international problem – the cost of care for an increasingly ageing population.

ii) There was an air of unreality in saying that the members of the largest local authority in Europe, in the vanguard of equal opportunities over many years, were unaware of the duty imposed by s 49A – it "bordered on the absurd" to say members needed to have that duty pointed out.

iii) Even where final decisions were reserved to Cabinet or the Council itself, members were entitled to rely on the work carried out by Council officers. Decisions did not comprise only that done by the decision taker at a particular time without taking account of the preparatory work. Cabinet and the Council often take important decisions involving vast sums of money and affecting large numbers of people at great speed, and need to do so.

iv) Members are not bound to call for background papers. Where background papers are referred to, members will be aware that they have been relied upon and are part of the material that has led to the report. It is for the member to decide whether or not to ask for it, and the member is entitled to rely on the work done by officers in preparing it.

v) Cabinet is the Council, not a delegate of the Council. The Council is responsible for overview and scrutiny, but is not responsible for policy as to adult social care. That responsibility on the part of Cabinet is one of a large number of functions, the great majority of which included equality duties.

vi) The time frame was set externally, and it was "incredibly short". There was a predictive announcement by central government just before Christmas: this had to be taken into account by the Council for the purpose of a multi-billion pound exercise so that a budget could be made by 1 March 2011 as regards precepts and 11 March 2011 for council tax demands. The grant received from central government was not at large for discretionary spending, the Council had to spend first on tasks that were mandatory: loan charges, staffing, contractual commitments already made – all these had to come out of revenue. It was in that context that the Council agreed that choices could be made. Members were aware that they could have an Extraordinary Meeting in order to divert expenditure from other areas to adult social care.

89. A further introductory point concerned the approach to be taken by the courts. Here the Council drew an analogy with what had been said by Lord Neuberger - in Holmes-Moorhouse v London Borough of Richmond upon Thames [2009] UKHL 7 - said at [48]:

"Further, at least in my experience, and as this case exemplifies, review decisions generally set out the facts, the contentions, the analyses and the conclusions in some detail. To my mind, given the importance, particularly to the applicant, of the issues considered in review decisions, such fullness is to be strongly encouraged. However, as any lawyer knows, the more fully an opinion is expressed, the greater the opportunity for alleging mistakes of fact, errors of law, or inconsistencies. If the courts are too critical in their analyses of such decisions, it will tend to discourage reviewing officers from expressing themselves so fully".

90. It was commented that if the court attributes too much significance to slips on a "route that is difficult and fraught" this over-judicialisation would cause a bleed out of sparse welfare funding into litigation. Mistakes inevitably cropped up when people were working under far too much pressure and did not have the money to do things perfectly. This issue was whether the mistake was sufficiently germane to invalidate the exercise.
91. In general it was submitted that courts should be very wary not to intervene in questions involving the balancing of competing claims, which were matters for expertise, specialist knowledge, local policy and democratic accountability. Lord Millett in Southwark London Borough Council v Mills [2001] 1 AC 1 had said that judges were not equipped to resolve issues of priority in the allocation of resources. In a context where long term strategy considerations, expertise, political and social awareness, and local knowledge all had a part to play, Lord Neuberger had said in R(Ahmad) v Newham London Borough Council [2009] UKHL 14 that it was inapt for the courts to interfere, save in clear and exceptional circumstances.
92. Turning to the grounds of challenge in the present case, they were concerned with adult social care in Birmingham. That, the Council submitted, brought in local considerations, local knowledge and local choices. Birmingham's choice until 2010 had been to reject a move to "critical only", on the basis of an assumed increase over time in adult social care spending. Both that choice, and the change in the November Budget Plan Consultation had been officer led.
93. The challenge began life as a claim that Birmingham should increase its Council Tax. Instead, it was now that other areas of activity should be cut instead of Adult Social Care - without any such area specified, any implications (including for the disabled) considered, or any savings quantified. An approach of that kind was to be deprecated - see Ahmad cited earlier.
94. In relation to the move to "critical only", this had been part of what was described as "Option 2" and became the "New Offer." On this, Mr Hay in his first statement said:

38. I want to stress that the choices are not simple. Sustaining (or, rather, trying to sustain) the existing approach would inevitably mean a continuing reduction in the number of people served without making any provision for those who are excluded. This is deeply prejudicial to those with lesser needs but who do need some help. What is needed - and would have been needed even without the current pressures - is to recalibrate our approach, so as to (on the one hand) reduce the number of people to whom services are directly offered or for whom they are provided with the funding to acquire them, while (on the other) building up expertise and resources to allow an increased number of people to support themselves (in whole or part) through other mechanisms, including the better use of their own resources and access to other sources of support.

39. Option 2 was therefore to try and approach social care differently. National work, led by John Bolton at the Department of Health, drew attention to the need for greater efficiency but also to the potential to use new approaches such as enablement to reduce a pattern of increasing need and costs. Pulling together all the work that we had done, the conclusion we reached was that we could do better for that part of the community we serve than the "less of the same" under Option 1, by paying more attention to (and investing more in) prevention, enablement, and mechanisms for helping people to access means of support other than direct provision, or directly funded provision, by the Council. Option 2 is not just about limiting long-term such provision to critical needs but also about developing other forms of assistance for those with lower levels of need.

40. We saw the particular advantages of an alternative approach as follows.

(i) A real focus on upping our game in providing information to all citizens, which could help people make earlier and better decisions to avoid care needs arising or developing and/or to shape better care for themselves.

(ii) We saw the real potential to invest in prevention. We had worked up plans for schemes preventing falls and protecting mental well-being including by early recognition of dementia.

(iii) Greater integration of care and health services would improve the continuity of support and be more efficient.

(iv) We wanted to place real stress upon the needs of carers, and recognise the support that they offer with better methods of intervention and assistance.

(v) We were very struck by Option 2 being rooted in the "whole place". Social care is about the social model – trying to work across communities to help people overcome exclusions and integrate into ordinary lives/experiences. Option 2 seemed to be more consistent with those aims and values.

(vi) A focus on the whole community and a range of responses to work with needs seemed to be more inclusive and offer a greater potential impact for more people.

41. There is, perhaps, one point that I am somewhat taking for granted here. Even leaving aside that there is not the money to do both - i.e. Options 1 and 2 - developing our Option 2 approach cannot be done abstractly or in theory; the pool of those in need is very large indeed, but it is not infinite; sometimes policies can be developed through pilots, but broader policies such as "upping our game," investing in prevention and so on - all those I have listed in the last paragraph - need to be applied (and applied broadly) if they are to be developed at all, which is to say that they have to be put into practice, to see if and how they work (commonly, with continuing adjustments) with (at least some of) the same people who would otherwise be the recipients of direct provision. What I am trying to say here is that this is not all or even predominantly about cash; it is about the (policy) choice of the best practices or mechanisms for providing necessary services and assistance.

42. This is not to seek to deny the financial element in consideration of provision for the client group: there is no system anywhere in the world which addresses such provision without regard to its cost and affordability (and, as I have noted above, para.2, there is any event a constant duty to seek value for money and to discharge the authority's fiduciary duty to balance the interests of local taxpayers with those of service recipients). Of course it has been brought into focus by the new financial environment - if one will, the need to make up our minds has been sharpened and perhaps brought forward by it - but the policy choices were already there and fell to be made, not least because we were already serving fewer people through an Option 1 approach even at times when the budget had grown. (See also para.58, below).

43. We accept that, even now, there are parts of the Option 2 model that are uncertain and/or untested; we acknowledged this in the consultation documents and presentations. One of the aims in the consultation, however, was to consider the risks of both Options with citizens and to reach a considered view on the basis of having shared those risks. This was not, and plainly could not be, a consultation exercise on the details of how additional support under Option 2 would operate - it was on the options in outline, i.e. on the broad approach to the new offer; we were outlining the new approach, in order to get feed-back on it, to use that feed-back in its development. We have committed to working with citizens in the design and implementation of Option 2.

95. By contrast with the positive approach taken by the Council and its officers, the focus of the claimants' case had been exclusively on the perceived negative effects of the transformation programme.
96. The Council submitted that it had taken a legitimate policy decision to consult on broad options. It had not purported to be consulting on alternative plans for supporting substantial needs, it did not need to do so, and it was not possible to develop alternative systems for supporting substantial needs without actually engaging with the task of doing so. That was in a context where, although this was not said at the time, Mr Hay's evidence was emphatic that no one with substantial needs would go unheeded or unassisted. It was true that Business Plan 2011+ had identified a "medium risk of serious failure", but this was a risk as to the impact on the Council. No one would lose support until their needs had been assessed against other resources that were available. Part of the exercise was putting pressure on third party contractors to reduce fees: there were good policy reasons why the Council did not want to shout this from the rooftops. Saying, "don't worry, we will provide" would encourage people not to change. By contrast the intention of the Council was to urge the voluntary sector and family and friends to do more.
97. As to the assertion that consultation responses had not been taken into account, the lengthy debate on 1 March involved extensive discussion of criticisms of the proposed move to "critical only". That needed to be seen in the context of moving towards greater prevention, enablement and signposting. Similarly the Cabinet discussion on 14 March had dealt with concerns raised in consultation in the way in which they had been addressed. The claimants had not identified anything that was available to be said or known which was not said or known; nor had the claimants advanced any solution which could credibly solve the problem confronting the Council. The criticisms were small in number and the errors insignificant. In the context of externally imposed time constraints, the large number of meetings held and large numbers who responded, the process gave rise to criticisms which in number were significantly smaller than might have been expected, and were below any line which would justify vitiating the process as a whole.
98. Turning to the duty under s 49A, that section did not require the production of an EINA. Nevertheless the Council took that course, and it involved a continuing process, not one under which an individual document was to be specifically considered at a specific time. The Council had never suggested that its duties under s 49A were discharged "inherently" by its adult social care activities. What the Council contended was that decisions taken in relation to adult social care, as with numerous other decisions, were decisions taken which reflected the s 49A duty. Thus "Option 2" had begun with consideration of how to address the needs of the disabled.
99. The Council's submissions stressed that equality had been a principal theme in the work of the Council in the period up to the decisions of March 2011. By way of example, Mr Hay in his first statement said:

5. One of the major changes in the programme I have overseen has been to introduce individual budgets (ie the provision of money to service users for them to purchase services) rather than the policy of Council-provided services. This approach comprises a major policy shift, encouraged by central Government, which recognises benefits and efficiencies in service users taking - and having a sense of - control and choice over services to meet their needs; there is no longer any assumption that service provision should be or is best provided directly by authorities themselves.

6. In particular, citizens are encouraged to use their individual budgets to create support plans that are designed around meeting their needs in ways that work for them, rather than being subject to a more centralised and bureaucratic system where the services provided are those selected - and applied to them - by the Council, which may not suit their preferences or work as well for them. Over a three year period, this change started with a number of small pilots before becoming the way in which we deliver publicly funded care services now. We hit the national target, six months ahead of time, of 30% of people receiving care in this manner.

7. The process of introducing individual budgets (through three stages of developing the business case - Initial, Full and Revised), involved constant consideration of equality issues and impacts. In all the major changes of services that we have subsequently delivered, equality has been a principal theme. Our performance, particularly in using direct payments to improve take up of services and choice by BME citizens, was consistently seen as a strength by the regulator, the Care Quality Commission.

8. I should add that, during 2009, we did consider the option of altering the eligibility criteria in order to meet the funding gap as it then was perceived, but we rejected this as a policy choice at that time. Instead, we chose an ambitious programme of cost reduction, using individual budgets.

…

44. … EINAs - across the six strands - are part of our normal processes; plainly, for us, there could be issues in relation to any of them (gender, race, disability, religion or belief, sexual orientation and age). Oddly enough, however, disability discrimination - or the promotion of disability equality - is not, discretely, a major feature, because virtually the whole of our work is directed towards combating its effects and seeking to advance those who suffer from it.

45. Indeed, on analysis, it is clear that it is only a very small number of our clients who are not disabled, for while many of our clients are older, those who turn to us for assistance are those who are affected - usually long-term - by impairment derived from the physical or mental conditions that come with age and which have a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, i.e. the physically and mentally fully fit elderly person who can continue such normal activities does not look to us for assistance (and there is none we can offer: purely financial "impairment" is of course addressed through the social security system).

46. There are exceptions, being those adults who fall into a need for forms of care or support but not on a long-term basis, e.g. someone normally fully capable of living in the community without help but who becomes ill or perhaps falls and breaks a limb and so on, or of course who becomes short-term mentally impaired. These comprise, however, a very small minority of our service recipients, both because the period for which we assist them is short and because commonly there will be other resources - e.g. relatives, friends or neighbours - who are willing to assist for a relatively short period but on whom long-term reliance cannot be placed. In addition, there are those with specified addictions and tendencies who are excluded from the statutory definition by regulation (Equality Act 2010 (Disability) Regulations 2010, SI 2010/2128, regs 3 and 4. Again, this is not a large group. It is economically and administratively most efficient and effective to treat these relatively few people in both groups on the same basis as the remainder of the client group, notwithstanding the technical proposition that they are not legally disabled; to do so does not, in my view, distort in any substantive or meaningful way the attention paid to, and services provided for, the majority of that group.

47. The considerations in s.49A are, accordingly, part of the very fabric of our work. Without in any sense down-playing its importance (to the contrary, I hope that I am adding to it), it is a fundamental part of our reason for existing to protect disabled persons, to promote their position as against others, to provide for their disabilities and so on. (It is also inherent to the balance - above, paras 4, 42 - that has to be struck between their interests and those of local taxpayers that their needs are to be protected, promoted and provided for). I would like to add, based on my years in local government and at Birmingham, that this perspective is not particular to those working in adult social care, but is shared by other senior colleagues and members. Consideration of the needs of the disabled - in terms of the requirements of s.49A, Disability Discrimination Act 1995, is therefore inherent in the whole of our work, and implicit in our decision-making, as well as explicit.

48. Of course, there are different categories of disability - hence, the four client groups to which I earlier referred in relation to RAS (above, para.10) - and of course we consider their different requirements because those (different) needs comprise prime relevant considerations for the exercise of our functions, but s.49A does not require us to consider them as against each other and, as I say, we are seeking to provide for them all (who are adults).

49. I say that here because I want to relate it back to the choices between Options 1 and 2. It was (and is) our view that it is Option 2 that gives us the opportunity to do the best we can for the disabled who (but for the two small groups identified in para.46) comprise the whole of our client group, i.e. to do the most for the most of them. Consideration of that question - or of that choice - is based on our consideration of the disabled, and is our conclusion as to how they may be best served and - within available resources - even preferred, both in the short-term and in the longer-term. Subject always to meeting statutory obligations, to describe as negative (or similar) a decision which in the short-term withdraws a service which is not sustainable in the longer-term is a value-judgment. Our judgment was (and is) that it would be detrimental to the interests of our clients to provide them with services which we cannot continue, without developing substitute arrangements which are sustainable; we believe it is in their interests to get away from a culture of unsustainable dependency and as soon as we can. … even if (which it is not) the money were available to sustain the former and develop the latter at the same time, that is not an approach which works. Furthermore, it is a value-judgment that authority-provided or funded services are necessarily "better" than helping people to help themselves and/or to obtain help from family, friends and the wider community.

100. In particular in relation to "due regard", the Council submitted that consideration of impacts relevant to the equalities issue was an element of developing the transformation programme from 2008 onwards. The Council added that its consideration of the options for making savings from the summer of 2010 onwards necessarily involved addressing potential impacts. That process led to the identification of "Option 1" and "Option 2". Mr Hay's evidence was that in identifying those options the Council addressed the implications and impacts of each, how service users' needs would be met and effects ameliorated. Thus it was as part of the process of "due regard" that Business Plan 2011+ summarised consultation responses, was based on priorities and principles of protecting vulnerable people, and of prevention, reducing dependency and personalisation. In the February Supplementary Information the Council was urged to consider the terms of the EINA, in a context drawing attention to the potential impact to disabled people, while noting that reconfiguring personal care and investing in the prevention model would provide some mitigation. The Corporate EINA had referred to the s 49A duty, commenting that equality considerations did not preclude cuts or changes in services but did require that they be "fully understood, both individually and holistically". The A&C March Report had summarised the ASC EINA and referred to it among the background papers. In Appendix 4 information was given about how many service users were either not critical or had no eligibility banding. It was made clear, however, that no one's care would be changed without an assessment and reiterated that withdrawal of support would not occur if not practical or safe. Appendix 8A addressed the context of "personalisation of social care" meaning giving "people the opportunity to have as much independence, choice and control as possible by being in charge of their own care". It outlined the sort of services which allowed people "to remain independent of social care" by way of "advice and information when they first need it or are signposted to other universal or community services where they can get help." Issues were identified in Appendix 8B, including managing the transition to "critical only". In that regard there would be assistance for those with substantial needs to become more independent by the provision of short term enablement services and advice. Impacts and their mitigation were also addressed at the meeting on 14 March 2011 in Mr Hay's presentation.
101. Accordingly the Council submitted that it had identified and considered throughout the process what alternative courses of action were available and their implications, the nature of the changes being proposed, the nature and extent of the impacts and how those impacts were to be addressed and mitigated. This was more than sufficient in order to give due regard to the matters required under s 49A. The assessment was as rigorous as the circumstances and time permitted: short of individual assessment, there was little if any generalised impact to be considered beyond numbers and the withdrawal of financial support once other resources were in place. In all the circumstances the impact was "inherently obvious". On the question whether members had asked for the full EINA when this was referred to simply as a background paper, the Council submitted that it was entitled to the benefit of the presumption of regularity. In a context where members were entitled to rely upon work done by officers, it was for members to decide how far to go into that work. The fundamental point remained that there was nothing more to be known of a general order until the policy was applied to individuals with their substantial – but different – needs.
102. To my mind the Council's submissions mischaracterise s 49A. As the agreed propositions demonstrate, the role of the court is to assess whether the Council has complied with its duty to pay "due regard" to the matters identified in that section. Unlike the Ahmad and Mills cases, the claimants' challenge in the present case did not ask the court to decide issues of priority in the allocation of resources.
103. I readily accept that the court should apply the principles identified by Lord Neuberger in Holmes-Moorehouse. It is not the role of the court to get involved in minute scrutiny of a mass of detail. I accept that consideration by the Council of the proposed move to "critical only" involved a "macro decision". I also accept that the Council had to take a decision about the extent to which it would analyse in detail the likely impact on individuals of the options which it had identified. As was accepted, however, by the Council, that must be seen in the context of all the work that the Council had done as part of the transformation programme. On any view, the dramatic concerns identified in Mr Ally's report of November 2010 were a highly significant feature of that context. The claimants' analysis of all that was done by the Council in the period from November 2010 onwards in my view undeniably shows that the Council did not in any real sense refine and focus what in November 2010 was necessarily a "high level and generalised" description of the likely impact of moving to "critical only". It is difficult to see how, in the circumstances of the present case, "due regard" could be paid to the matters identified in s 49A without some attempt at assessment of the practical impact on those whose needs in a particular respect fell into the "substantial" band but not into the "critical" band.
104. It is apparent from the witness statements which have been made in these proceedings by Mr Hay that he had a strong belief that no one with "substantial" needs would go unheeded or unassisted. That belief, however, was not made apparent to members, nor – even in the light of what is said in his witness statements – is it clear what this would mean in practical terms for those affected.
105. The decision to consult "on broad options" required consideration of a subsidiary question whether to go beyond generalities in assessing the likely impact of the proposed course upon individuals with "substantial" needs. At the very least it seems to me that in order to pay "due regard" the Council when deciding to consult "on broad options" needed to consider whether its answer to the subsidiary question was consistent with its duty under s 49A. The submission now made by the Council is that it would have been impossible to do so: but that was not a feature of the analysis put to members, and the assertion is one which runs counter to what Mr Ally had said about the ability to refine the analysis in his November 2010 report.
106. I readily accept that throughout the process the Council was giving consideration to how to address the needs of the disabled. In that sense its decisions taken in relation to adult social care were decisions which were relevant to its performance of the s 49A duty. That is not the same thing, however, as doing what s 49A seeks to ensure: namely to consider the impact of a proposed decision and ask whether a decision with that potential impact would be consistent with the need to pay due regard to the principles of disability equality (see agreed propositions viii, ix, x and xxi).
107. As noted earlier, I accept that if Mr Hay had thought that the expenditure targets were insufficient for the discharge of the Council's statutory duties under s 49A he would have advised Cabinet to recommend to the full Council that further spending resources be allocated to the Directorate (even if they had to come from other budgets or from reserves). Conspicuously absent, however, from the material before Cabinet was any express statement that Cabinet must consider whether s 49A required it to take this course, in particular because of the potential severity of the impact of the proposed move to "critical only."
108. In my view the evidence as a whole makes clear that there was a failure by the Council on 1 March 2011 and Cabinet on 14 March 2011 to focus on the questions which agreed propositions viii, ix, x and xxi required to be asked. The failure to ask the right questions must, to my mind, lead to the conclusion that the decisions of 1 and 14 March 2011 so far as concerns the New Offer for Adult Social Care were unlawful and cannot stand. Moreover, even if members were able to form some sort of opinion as to the broad impact of the move to "critical only", there was not in the material prepared for the meetings any assessment of the extent to which such mitigating factors as were mentioned would or would not reduce the potential severity of the proposed move to "critical only". True, there were passages in this material which acknowledged complaints about lack of detail in the consultation papers and purported to reply: but the reply did not meet the complaints. The passage in the A&C March Report headed "Evaluation of Alternative Options" did not remedy these defects. In the EINAs, if members had consulted them, neither the analysis nor the suggested action plans attempted to examine what the actual impact of the move to "critical only" would be or how it would be affected by mitigating measures. Had members appreciated the need to consider the right questions, they would not have had the wherewithal to answer it.
109. I add, although it is not a determinative feature in my analysis, that in its evidence the Council acknowledged that financial constraints played a part in the proposal to move to "critical only." That fact of itself involves no breach of s 49A: authorities must seek value for money and must balance the interests of local taxpayers with those of service recipients. However the stance of the Council in the present proceedings has involved an assertion (see e.g. Mr Hay's first statement at para 58) that the position already reached in Birmingham meant that there was no more room for manoeuvre; it might be that other authorities could cope for a while longer by making the sort of savings the Council had already made, but the Council could not. It may be that this belief underlay Council officers' approach to the decisions to be taken on 1 and 14 March. The material prepared for consideration on those dates did not consider the possibility that this belief might not be right.
110. Thus I conclude that there was a failure in the material prepared for consideration on 1 and 14 March to address the questions which arose when considering whether the impact on the disabled of the move to "critical only" was so serious that an alternative which was not so draconian should be identified and funded to the extent necessary by savings elsewhere. In reaching this conclusion I should not be taken to make any personal criticism of officers of the council. By way of comment only – for it is not necessary to my decision – I observe that council officers were, as Mr Arden submitted, working under pressure of time and resources. Mr Hay said at para 44 of his first statement that for them disability discrimination - or the promotion of disability equality - was not, discretely, a major feature, because virtually the whole of their work was directed towards combating its effects and seeking to advance those who suffer from it. The combination of these factors, I believe, may well have led them to lose sight of what s 49A required in the context of something as potentially devastating as a move to "critical only."
111. There were other contentions of the claimants on the question whether the Council's consideration of the move to "critical only" met the requirement to have due regard to the matters listed in s 49A. In the light of my conclusion on the principal contentions I can deal with these other contentions relatively briefly. I take them in turn:

i) A first contention in the claimants' speaking note concerned agreed propositions ii, xv and xvii. The assertion was that there had been a failure to pay due regard before a decision was taken in principle and when the proposed policy was still being formulated. That assertion, however, was dependant upon the premise that there had been a wrong assumption on the part of the Council that due regard for the duty was "inherent" in the adult community care scheme. It is not necessary for me to reach any conclusion on that premise. I have noted earlier the Council's submissions that its decisions reflected the duty in s 49A, and have concluded that that does not assist the Council to escape from the conclusion that the process adopted in the period from November 2010 onwards was incompatible with the fulfilment of the duty under s 49A.

ii) It was said that the EINAs were prepared far too late. As to that, it would be wrong to attach too much significance to the formal production of an EINA as long as during the process leading up to the decision proper consideration is being given to the need to pay "due regard".

iii) Reliance was placed on the lack of evidence that any member read the relevant full EINA prior to taking the relevant decisions. This is not a question which I need to examine in the present case. The differences between the summaries given in the papers provided to members and the fuller accounts in the EINAs are no more than matters of detail and are not germane to the conclusions that I have reached above. I think it preferable that the question raised in this regard is left over for decision in a case where it has a critical impact on the outcome.

iv) Reliance was placed on the absence of evidence from any member, or anyone else present at a relevant meeting, that specific regard was paid to the equality duties at that meeting. As to that, if there had been evidence of that kind it would have required very careful consideration. There was no evidence of that kind, and accordingly to the extent that such evidence might have assisted the Council to answer the challenge, it was not present. I do not need to decide in the present case whether the absence of such evidence of itself could enable a challenge to succeed. Here, too, I think that the point is best left over to a case where it is critical to the outcome.

v) It was said that Cabinet was told on 14 March that the savings identified in the budget were "mandatory" and this prevented Cabinet from being able to cure a lack of due regard at the time the budget was set. I do not think that this adds anything to the analysis identified earlier. The crucial point is that Cabinet did not address the right questions.

112. The claimants' further note dated 16 April 2011 commented on the recently submitted third witness statement of Mr Dransfield. As noted earlier, the claimants accepted his evidence that the £33.2m identified in the November Business Plan Consultation and subsequent documents included an element for reductions in third party care payments. The note continued:

The failure to engage in the equality documents with the fact that third party fees would be significantly reduced is contrary to the duty. This is because the potential impacts on disabled people of this approach are obvious and include that:

Third party care providers may not be able to provide the necessary levels of staffing ratios which severely disabled people will need if their fees are reduced;

Current qualified staff may leave if pay rates are reduced as a result of declining fee income; and

Unqualified staff may be recruited to replace more experienced and qualified staff to help drive costs down.

Even if in fact none of these detrimental impacts would necessarily follow from the reduction in fees, the duty on the Defendant was to analyse the potential impact, report on it to Members who were making the decision and ensure that Members paid due regard to the information at the time the decision was taken. None of this was done and this therefore provides a further reason why the Defendant's decision-making was vitiated by an absence of due regard to the disability equality duty.

113. This was inevitably a last minute addition to the grounds of challenge. It was not the subject of further evidence on the part of the Council, and I do not think it appropriate to reach any conclusion on it in the absence of such evidence.

(2) s 49A: other aspects of the proposed changes

114. The proposal to move to "critical only" was an addition to other changes which had already been identified as proposals in the course of developing the Council's transformation programme. The claimants' submissions at various points criticised the approach taken by the Council to the introduction of a Universal RAS and the "Quickheart" software. These points were subsidiary to the move to "critical" only, and I think it would be artificial to reach any conclusion on them in isolation.

(3) general administrative law principles of "illegality"

115. As noted in paragraph 2 above, the claimants identified as a separate head of challenge a failure by the Council to "ask itself the right questions". It has long been settled that a failure to have a correct understanding of the law governing a particular decision may lead to challenge under the head which Lord Diplock described as "illegality". In the course of argument, however, Mr Wise rightly acknowledged that this head of challenge did not add anything to the main ground of challenge concerning failure to comply with s 49A.

(4) Consultation

116. It is common ground that a consultation process must provide consultees with sufficient reasons in support of particular proposals to allow an intelligent response to be made, and must ensure that the responses are conscientiously taken into account when the ultimate decision is taken. My conclusion as to the failure to comply with s 49A inevitably carries with it a conclusion that the consultation was inadequate. Just as the decision making process failed to address the right questions, the same is true of the consultation process. There are additional features of the consultation process in the present case which are troubling. The choice of words initially used by the Council – a move to a "funded service for only those of low means whose personal care needs are critical" – inevitably led consultees to believe that needs unrelated to "personal care" would not be supported – for the reasons set out in the consultation response from Sense. Even with the benefit of subsequent information the position was difficult to follow – see the detailed analysis given in the consultation response from Autism West Midlands. Additionally the consultation process failed until a very late stage to make clear that the proposed saving of £33.2 million in 2011/12 involved, as to a substantial part, a saving which had nothing to do with the move to "critical only". As regards the former, Mr Arden was able to point to some consultation responses in which the true position had clearly been understood. Nevertheless in my view there remained considerable scope for confusion on the part of those to whom the consultation had been addressed. As regards the latter, it seems to me that there are very substantial grounds for concern that consultees did not have the opportunity to assert that the true sum involved in retaining "substantial" as the criterion for eligibility was a sum which could be properly found by making savings elsewhere. Even if the Council had asked itself the right questions I would have concluded that the consultation process, for these two reasons, had not complied with what the law requires.

(5) Human rights considerations

117. In the course of argument it was accepted on behalf of the claimants that relevant articles in the European Convention on Human Rights did not add in substance to the heads of challenge already advanced.

Conclusion

118. For the reasons given in relation to issues (1) and (4) above, I conclude that the challenge succeeds. I ask the parties to seek to agree an appropriate consequential order.