QUEEN'S BENCH DIVISION
Sitting in Manchester
Strand, London, WC2A 2LL
B e f o r e :
| The Queen (on the application of 'D' and 'S')
|- and -
|Manchester City Council
Mr John Howell QC and Mr Tom Hickman (instructed by the City Solicitor) for the Defendant
Hearing dates: 24 & 25 October 2011
Crown Copyright ©
Mr Justice Ryder :
i) The defendant's decision to reduce its budget for the division which provides adult social care by £17m over the next two years, with £8.8m of savings from frontline services, is unlawful because it was taken without due regard to the disability equality duty in section 49A of the Disability Discrimination Act 1995 (DDA 1995); and
ii) The defendant's ongoing consultation on its 'Revised Social Care Offer' breaches the common law duty of fairness because it lacks sufficient information as to the nature and consequences of the proposals to allow respondents to make an intelligent response.
Adult social care policy background
i) A duty to assess the presenting needs of individuals who may be eligible for adult social care services;
ii) A duty following assessment to determine whether the individual is eligible for adult social care services; and
iii) If the individual's presenting needs satisfy the eligibility criteria, a duty to provide services to meet the individual's eligible needs, whether through direct payments or direct services.
iii) Moderate; or
"…In setting their eligibility criteria, councils should take account of their own resources, local expectations and local costs. Councils should take account of agreements with the NHS, including those covering transfers of care and hospital discharge. They should also take account of other agreements with other agencies, as well as other local and national factors.
 Although final decisions remain with councils, to promote greater clarity and transparency, they should consult service users, carers and appropriate local agencies and organisations about their eligibility criteria and how information about the criteria is presented and made available.
 Councils should review their eligibility criteria in line with their usual budget cycles. Such reviews may be brought forward if there are major or unexpected changes, including those with significant resource consequences. However, councils should be mindful of the evidence cited above which suggests that raising eligibility thresholds without a parallel investment in preventative strategies may lead to increasing demand for services in the longer term.
 In this guidance, the issues and support needs that are identified when individuals approach, or are referred to, councils seeking social care support are defined as "presenting needs". Those presenting needs for which a council will provide help because they fall within the council's eligibility criteria, are defined as "eligible needs". Eligibility criteria therefore describe the full range of eligible needs that will be met by councils, taking their resources into account. Councils should work with individuals to identify the outcomes they wish to achieve, and to identify where unmet needs are preventing the realisation of such outcomes."
Financial decision making
"83 Apart from statutory duties relating to specific proposals the council must consider its obligations under the Equality Act. In broad terms this means that the council has a duty to have regard to the need to eliminate discrimination and advance equality of opportunity between all irrespective of whether they fall into a protected category such as race, gender, religion etc.
85 In determining the final set of proposals for consideration officers have had regard to how the equality duty can be fulfilled in relation to the proposals overall. However detailed equality impact assessments will be required for specific proposals as identified by each directorate prior to final decisions being made.
89 The council needs to be satisfied that it can continue to meet its statutory duties and meet the needs of vulnerable young people and adults. Proposals have been drawn up on the basis that Strategic Directors are satisfied that this will enable them to continue to meet their statutory duties and the needs of the most vulnerable."
|Proposals – Redefined Social Care Offer||Savings Target|
|A||Increased use of Reablement||£3,218,000|
|B||Prevention and innovation through Reviews||£2,627,000|
|C||Changes to Resource Allocation System (RAS)||£2,918,000|
|Sub-total||Redefined Social Care Offer||£8,763,000|
"1. Increasing our Reablement Service. This is support for about 6 weeks for people who need help to get back up to speed and live as independently as possible after a crisis, for example, being in hospital, an accident or a fall.
2. When we carry out a review of customer's needs, we will look at other ways to better meet support needs…
3. Continue to support the most vulnerable customers in the City. We will change the way we allocate money to meet certain needs and introduce greater levels of flexibility to manage risk."
"Impact on Type of Provision to Customers
These proposals including the adjustment of the RAS will redefine the offer and reduce the types and choices of provision in certain areas whilst maintaining the commitment to meeting all 'substantial' needs; it is proposed that those universal needs which are not directly related to personal care such as cleaning, shopping, pension collection and laundry will no longer be directly provided and funded by the Council. Instead, the council will assist individuals to have those needs met from within the family or wider community, from voluntary organizations or charities, or from commercial organisations. These commissioning changes will be in place before any changes are made to individual care packages. This will reduce risks associated with the proposed changes."
"As stated in the report, the proposal is that consideration will be given to providing these services in other ways when needs are assessed (see eg paras 7.5 and 8.7). However, as the report makes clear no changes will be made unless an individual's needs will continue to be met and pending any appeal."
"…Assessment staff must ensure alternative sources are available to provide the services no longer regarded as eligible. If they cannot, and the need still exists then Assessment staff may apply to Funding Panels for additional resources to meet needs until some other forms of support are developed."
The claim in respect of the Council's budget
"Every public authority shall in carrying out its functions have due regard to –
(a) the need to eliminate unlawful discrimination and victimisation;
(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."
"(1) A public authority must, in the exercise of its functions, have due regard to the need to –
(a) Eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it:
(c) Foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to-
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.
(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to-
(a) tackle prejudice; and
(b) promote understanding.
(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
(7) The relevant protected characteristics are-
pregnancy and maternity;
religion or belief;
"Our attention has been drawn to a number of authorities on the need to have due regard... I find the greatest help in the judgments of Dyson LJ in Baker (dealing with the RRA) at paragraphs 30ff and of Scott Baker LJ in Brown (dealing with the DDA) at paragraphs 89/96, where each of them summarises what is involved in the duty to have "due regard". For present purposes I take from those summaries in particular the observations that there is no statutory duty to carry out a formal impact assessment; that the duty is to have due regard, not to achieve results or to refer in terms to the duty; that due regard does not exclude paying regard to countervailing factors, but is "the regard that is appropriate in all the circumstances"; that the test of whether a decision maker has had due regard is a test of the substance of the matter, not of mere form or box-ticking,.."
"Due regard" need not require the promotion of equality of opportunity, but on the material available to the council in this case it did require an analysis of that material with the specific statutory considerations in mind … "
"108. It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is to be embarked upon it must be carried our properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response, adequate time must be given for this purpose, and the product of consultation must be conscientiously taken into account when the ultimate decision is taken: R v Brent London Borough Council, Ex p Gunning (1985) 84 LGR 168"
"112. It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory regulation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this".
i) That there is no evidence that the defendant paid any regard to the disability equality duty;
ii) That the absence of any equality impact needs assessment (EINA) provides evidence of a lack of due regard;
iii) That no regard was had to the impact of any proposed cuts on disabled people and whether the detriment to disabled persons could be avoided or mitigated by (for example) finding savings elsewhere in the budget; and
iv) That it was insufficient for the Council to comply with the disability equality duty when considering the subsequent consultation on adult social care as there is no suggestion "that the outcome of this consultation could be any increase in the funding allocated to adult social care".
"The economic reality was that to meet imperative needs of reducing expenditure it would be extraordinarily difficult to avoid an adverse effect on adult social care. But there remained flexibility as to how any such effect on disabled persons could be minimised and mitigated… "
"in my view it was sensible, and lawful, for the Defendant first to formulate budget proposals and then, at the time of developing the policies that are now under challenge, to consider the specific impact of proposed policies that might be implemented within the budgetary framework. "
"a. identif(y) any detriment to disabled and/or elderly people from the proposals on which it intended to consult;
b. consider whether to proceed with the consultation was consistent with due regard to the specified needs;
c. provide its assessment to consultees to enable them to comment on any detrimental impact in the course of the consultation"