Council faces High Court challenge over 'critical-only' policy for care services

Leading claimant law firm Irwin Mitchell said it had issued proceedings against West Berkshire Council, one of only three local authorities in the country to operate such a policy. The others are Wokingham and Northumberland.

The law firm claimed the policy would mean that “potentially thousands of people miss out on necessary care and support”.

The legal challenge has been issued on behalf of five severely disabled young people. They include SW, who Irwin Mitchell revealed has a diagnosis of severe learning disability and a mental age of around five or six years old. SW also has epilepsy, which causes seizures.

“She is in need of constant supervision and without this is liable to hurt herself, particularly if she has a seizure,” the firm said.

In 2011 Irwin Mitchell won cases against Birmingham City Council and Isle of Wight Council over their policies in relation to access to care services. However, it failed in a challenge to cuts planned by Manchester City Council.

The firm said that its previous cases were based on councils failing to act properly or act in accordance with the Equality Act 2010. In this case, however, it said it would argue that a ‘critical-only’ policy is in itself unlawful.

Irwin Mitchell claimed that the policy was a breach of section 2 of the Chronically Sick and Disabled Persons Act 1970. No council can have such a policy or seek to introduce one in the future, it argued.

Alex Rook, the lawyer at Irwin Mitchell acting on behalf of the five claimants, said: “Many severely disabled people across the country rely heavily on the support that is offered by social care services, but not all of those people fall under the umbrella of what is deemed ‘critical’. This policy in West Berkshire leaves our clients and possibly thousands of others both potentially vulnerable to harm and isolated from their local communities.

“It also leads to what is often described as the ‘postcode lottery’ in social care, whereby any of our clients could move to one of the 149 other councils that do not have the same policy and would then be eligible for much needed care.  We are determined to ensure that our clients can get the support they need and are lawfully entitled to.”

The legal challenge is being backed by Mencap.

Mark Goldring, the charity’s chief executive, says: “Over the past few years many people with a learning disability have lost vital care and support because councils have been tightening their social care eligibility criteria to save money. The impact of these changes has been highly detrimental, as, without this support, people with a learning disability face a real struggle to live full, independent and safe lives, and an ever greater strain is placed on family carers.

“Local authorities have a duty to keep vulnerable people safe and provide them with support. By operating a critical-only policy, where even those with substantial needs are deprived of care services, a local authority is shirking its responsibility to some of the most vulnerable people in our society."

Philip Hoult