Social security - Services for sick and disabled persons - Assessment of needs of sick and disabled persons

JG and MB v Lancashire County Council: Administrative Court (Manchester) (Mr Justice Kenneth Parker): 2 September 2011

In February 2011, the defendant local authority (the authority) approved revenue budget proposals for the financial years 2011/12 to 2012/14. Its decision was to fix a revenue budget limit for, along other matters, adult social care, which constituted a finite cash sum within which all adult social care services were to be provided.

The decision did not constitute approval, as such, for any of the particular budget proposals which were to be the subject of further consultation. It was intended that decisions as to whether and if so, how, to implement the proposals would be taken the following month once there had been time to consider the responses to its consultation paper on the funding of adult social care services, which it had published in December 2010.

If it was not considered appropriate to introduce any or all of the proposed changes within the revenue cash limit then it was open to the decision maker to consider if savings could be found elsewhere. The authority prepared a report setting out the results of the consultation exercise and an individual report on a proposed increase in the threshold for adults accessing social care services under the Fair Access to Services Scheme (the FACS policy).

The proposal meant that services would only be provided to meet a person's needs if those needs were categorised as 'substantial' or 'critical' rather than simply 'moderate'. The FACS report was accompanied by an equality impact assessment (EIA). The decision maker had also been provided with a report and an impact assessment on a proposed change to how the authority charged for social care services received by adults living at home (the charging policy).

The effect of the charging policy was that customers would be charged on the basis of the recovery of the full cost of the service received subject to their ability to pay. In March 2011, both policies were approved by the authority. The claimants, who were both disabled, applied for judicial review of the decision to approve the budget proposals and the decisions to approve the FACS policy and the charging policy.

They submitted that the authority had failed in its duty under section 49A of the Disability Discrimination Act 1995 (the 1995 act) to have 'due regard' to the need to take steps to promote equality of opportunity for disabled people and the need to take account of disabled persons' disabilities, even where that involved treating such persons more favourably than others.

They contended that whilst the authority might have been conscious of its duty to have due regard to the relevant factors, it had not, at the time that the initial budget decision was taken, carried out a detailed assessment of the likely impact of the budget decision on the affected users of the relevant services. Further, they submitted that the assessment of impact carried out by the authority in relation to the changes to the FACS policy and the charging policy had been inadequate. The application would be dismissed.

It was established law that the duty under section 49A of the 1995 act was not a duty to achieve a particular substantive result, whether to promote equality or otherwise, but to have 'due regard' to the need to achieve those goals. Due regard was regard that was 'appropriate in all the circumstances'.

There was no obligation in the 1995 act to carry out a formal EIA, although such an EIA was a helpful way of demonstrating that the statutory duty had been complied with. It was necessary to consider the impact of a proposed decision and to 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 [43] of the judgment).

In the instant case, the authority had complied with its duties under section 49A of the 1995 act. It had been sensible, and lawful, for the authority first to formulate its budget proposals and then, at the time of developing the policies that were under challenge, to consider the specific impact of proposed policies that might be implemented within the budgetary framework.

The authority had taken a preliminary decision in relation to its budget, fully aware that the implementation of the proposed policies would be likely to have an impact on the affected users, in particular, disabled persons, but not committing itself to the implementation of specific policies within the budget framework until it had carried out a full and detailed assessment of the likely impact.

By the time that the decision had been taken to change the FACS criteria for eligibility and to amend the charging policy the authority had carried out a detailed and comprehensive analysis of the probable impact on service users, in particular disabled persons. It was clear that the authority had considered how the probable adverse effects might be mitigated. Whether or not the mitigating steps were adequate was a matter for the authority to determine.

The fact that the authority had directed its mind towards the question of what mitigating steps could be taken so as to lessen the impact of the relevant policies on affected users demonstrated that the authority had in fact had due regard to the matters specified in the 1995 act.

There was nothing wrong in principle with that approach and nothing inconsistent with the duties under the 1995 act (see [50], [52]-[54], [57]-[58] of the judgment). R (on the application of Baker) v Secretary of State for Communities and Local Government [2008] All ER (D) 412 (Feb) considered; R (on the application of the Fawcett Society) v Chancellor of the Exchequer [2010] EWHC 3522 (Admin) considered; R (on the application of Rahman) v Birmingham City Council(1) [2011] All ER (D) 28 (May) considered; R (on the application of W) v Birmingham City Council [2011] All ER (D) 53 (Jun) considered.

Ian Wise QC and Stephen Broach (instructed by Irwin Mitchel LLP) for the claimants. Sam Grodzinski QC and Janet Kentridge (instructed by Legal Services Department, Lancashire County Council) for the authority.