By Jean Gould
In May this year the High Court decided that Birmingham council had unlawfully discriminated against disabled people and the Judge prevented the council from raising its eligibility criteria for community care services from critical and substantial to critical only. The case was brought by four service users who had substantial needs and so would lose services.
One of them, known as M, has a severe leaning disability and the judge heard from his Mum about the level of need that was facing cuts. (M’s mother’s) 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.
In the consultation, Birmingham presented the cut in terms of a ‘new offer’ emphasising the benefits of personalisation and the big society. However, the equality impact needs assessment painted a different picture, saying that the reduction in eligibility would mean increased stress for carers and those they cared for. It also stated that basic needs would probably not be met, resulting in increased depression and mental illness, and a risk of abuse increasing over time. It also recognised that withdrawing support for substantial needs might well lead to critical needs developing.
The judge ruled that Birmingham had failed to have ‘due regard’ to the principles of disability equality contained in the public equality duty (now in section 149 Equality Act 2010) and had not considered how the ill-effects acknowledged in the impact assessment could be mitigated in practice. The judge also said there was no evidence that the so-called “new offer” had any substance. The judge went further in criticising Birmingham for limiting the consultation to the reduced budget figure and, implying there was no room for financial manoeuvre, saying that 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”.
This very significant legal victory for carers and disabled people demonstrates both the importance of challenging policy decisions to cut services to disabled people and the potential strength of equality legislation.
About the author
Former solicitor Jean Gould is a trainer with Carers UK. She is also an associate tutor at Sussex University and freelance legal consultant.
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