RESTRICTING community care services to those most in need is a controversial policy adopted by some local authorities and the legal issues around it have recently been considered by the High Court in a challenge by service users.

Since a 1997 case, the courts have found that it is lawful for social services to take their own resources into account when assessing the needs of disabled people. Subsequently the Government issued the Fair Access to Care guidance which instructed councils to put in place a banding system that decided whether a person’s needs were critical, substantial, moderate or low. Critical needs mean that services are required to protect life and limb, but those with substantial needs also struggle significantly to cope without services.

Most councils have provided for at least substantial needs, but increasingly some are exploring whether to provide only for critical needs, meaning that thousands of disabled people with substantial needs will lose services, to the dismay of charities and often the NHS who may face increased pressure for services.

The London borough of Harrow decided to restrict its services in July last year. The council made it very clear that it did so reluctantly and blamed lack of central government funding for its predicament. However, it was challenged by service users supported by local charities such as Age Concern and Mind. The High Court, just before Christmas, decided that there was nothing inherently unlawful in having a policy which restricted services to those with critical needs. A person who wanted to challenge the council should wait until the actual impact in his or her individual case was known – there may be a case if human rights are breached or service provision is so low as to be perverse. Importantly, the council had made some concessions, for example deciding that those at real risk of abuse would always be assessed as having critical needs.

However, the court decided that the council had acted unlawfully in making its decision. The restrictions most largely affected disabled people and their ability to live independently, but the council had not properly considered its proactive duty to promote equality for disabled people, now included in section 49A of the Disability Discrimination Act 1995. Thus the decision was declared unlawful with the judge commenting that “an important reason why the laws of discrimination have moved from derision to acceptance to respect over the last three decades has been the recognition of the importance not only of respecting rights but also of doing so visibly and clearly by recording the fact”.

Social services departments want to provide for as many disabled people as they can. But if services must be cut this judgment offers some guidance as to what might be a lawful approach.

Stephen Cragg is a barrister specialising in public law at Doughty Street Chambers E-mail: s.cragg@doughtystreet.co.uk

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