Birmingham Council’s legal defeat over care cuts has consequences for other local authorities that do not follow procedures correctly or fail to consult
The challenges that local authorities face when making decisions about identifying savings and cutting services were brought to the fore last week - and indeed compounded.
In a well-publicised ruling, Mr Justice Walker found that Birmingham City Council had breached its duty to give proper consideration to the impact on disabled people, as required by the Disability Discrimination Act 1995, when it decided to restrict adult care services to those whose needs were ‘critical’. The case is significant for other councils whose cost-cutting initiatives have adverse effects on vulnerable groups as it highlights the potential for legal challenges to delay, or even prevent cuts if corners are cut and time-consuming but necessary procedures are not scrupulously followed.
Government policy has, at its core, the need to make savings in order to reduce the budget deficit. Councils are therefore being forced to reduce or reconfigure the number and range of services that they need to provide, meaning that the needs of a wide range of groups will not be addressed. Apart from the social consequences that this may throw up, there is also likely to be a significant longer-term cost and potential for more legal challenges like the one against Birmingham.
Public sector bodies are required under equality legislation to consider equality duties when assessing the impact of changes to policy and spending. For example, authorities must have due regard to the elimination of unlawful discrimination and harassment, promotion of equality of opportunity and the need to take steps to take account of disabled persons’ disabilities.
The fact that these equality considerations apply, does not mean that changes in services cannot be made. But it does make it much harder through significant and onerous obligations on public bodies.
For instance, there is a need to clearly assess and analyse the practical impact on those whose needs are affected by cuts or changes in eligibility criteria. In cases where the decision may affect large numbers of vulnerable people, many of whom fall within one or more of the protected groups, this due regard requirement is very high, and requires analysis of all of the information with specific statutory considerations in mind.
Birmingham had not given proper consideration to the impact on disabled people and had failed to adequately consult on its proposals despite a lengthy process.
The judge concluded that the issue that the council needed to address was ‘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’. Essentially Birmingham Council had failed to ask the right questions and councillors were not given the right information to answer those questions.
On the positive side for Birmingham however, Mr Justice Walker acknowledged the difficulties faced by council officers and stated that he should not be taken as making any personal criticism of officers of the council. He acknowledged, although it was not necessary to his decision, that council officers were working under pressure of time and resources. Sadly being too busy is not a defence in court against a legal challenge!
So where does this leave councils? The judgement, whilst clarifying how authorities should carry out this exercise in the future, also highlights how complex the decision-making process has become, particularly at a time of such austerity. Councils have the difficult task of balancing the needs of all of their citizens, in a limited timescale and against the backdrop of having to make increasingly unrealistically high savings.
There is no excuse for cutting corners, not following proper procedures and not taking into account relevant considerations, especially those as fundamental as equality duties that go to the core of a civilised societies’ values.
It is unlikely that this will be the last we hear on the subject as councils continue to be under increasing pressure to make savings.
Linda Walker is head of public & corporate governance at national law firm Dickinson Dees LLP
