Supporting Statement for Neighbourhood Networks
Values Into Action Scotland promotes rights, choice and control for people with learning difficulties. We are concerned that, the decision to terminate the contract with Neighbourhood Networks in Argyll and Bute and the manner in which this is being carried out, leaves the local authority open to legal action. More importantly we believe that this will have an enormous impact on the lives of people currently being supported by Neighbourhood Networks and is very likely to prove more costly for the local authority in the long term.
The following is our rationale for this belief.
In the current financial climate, many local authorities are reassessing their eligibility criteria. This means taking care of life-threatening needs and people at risk of harm, and little else. With councils facing cuts of 25% in real terms from 2011-15, such plans are not surprising. But they are self-defeating.
Local authorities are raising the eligibility bar for services. It’s inevitable that many services offering preventive support will be cut. When such services that support people to have an ordinary life are cut, an all too familiar process begins: things start to unravel, bills don’t get paid, anxiety levels increase, a crisis is created. Then, when people are in real trouble, they get a service – an expensive one.
Not only will social workers stretch the definitions of eligibility thresholds to secure clients a service, but many users will retain eligibility as reassessments place them in a higher band. Those who are denied a service will turn up in social workers' caseloads further down the line as their unmet needs increase.
What councils should do is invest in measures to delay, reduce or prevent acute care needs through reablement, telecare, falls prevention schemes, befriending and better support for carers. But, faced with such massive cuts from government, they cannot do this alone. The NHS has as much of an interest in the success of such preventive services as social services.
It is also promised that real-terms funding increases. Ministers must direct funding from the health service into such schemes. Without it, their pledge to protect the vulnerable from cuts will truly lie in tatters.
In adults' services, local authorities determine eligibility to receive services using the Fair Access to Care Services (FACS) criteria, which set four levels of need: low, moderate, substantial and critical, the threshold being adopted by an increasing number of councils.
Local authorities that "properly apply" FACS criteria are unlikely to leave themselves open to legal challenges because they will automatically identify people with the most severe needs.
However, local authorities tend to face more legal problems due to the way they carry out the (re)assessment processes. Before services are withdrawn there should be a reassessment of need rather than, for example, cutting everybody's home help or night-sitting services.
CONSULTATION
Although there are no strict rules that set the timescales and defined scope and scale of consultation exercises, local authorities could still face legal challenges if the process they use is deemed to be flawed.
In most cases it's likely that, before implementing an across-the-board restriction of criteria or service cuts, local authorities should consult interested parties. Most of them tend to do that these days but challenges tend to be made on the quality of consultation exercises - for example, whether enough time was given.
Although there are no legal requirements on the length of consultations, three months is considered to be good practice.
There's a "good chance that the courts would question any decision taken without consultation". (quote?)
Local authorities have to give a reasonable time for a proper response and that would be judged on each individual case. They've got to provide sufficient information so people can make intelligent responses. A lot of consultation documents we've seen are woefully thin on the background to and impact of decisions.
The consequence of not consulting properly is that they will be made by the court to go back and do it again and do it properly, and won't be able to take a decision unless they have done this.
Courts would also look at the "rationality" and "proportionality" of local authority proposals. "Local authorities would have to prove there was a balance struck between the rights of people being affected and the wider need to save money."
KEY JUDGEMENT:
R v North and East Devon Health Authority ex parte Pamela Coughlan: this often-cited judgement on continuing care responsibilities set a clear expectation that, if councils do consult on their decisions, they must do so properly. The initial reserved judgement in 1998 said the authority's decisions were biased in part due to a consultation process that was "vitiated by pre-judgment, non-disclosure of materials and inadequate time for response". A 1999 Court of Appeal ruling in the case said the consultation process, though not unlawful, was "open to criticism".
EQUALITY AND HUMAN RIGHTS LEGISLATION
Local authorities could also be challenged under equality legislation, including the Disability Discrimination Act 1995, the Race Relations Act 2000 and, from April 2011, the public sector equality duty introduced by the Equality Act 2010, which will replace the existing race, disability and gender equality duties.
When making decisions, public bodies have to undertake an equality impact assessment and have regard to a range of needs, such as ensuring people with disabilities have equality of opportunity with those without disabilities. This was highlighted in the Chavda v Harrow judgement in 2008 (see below).
Professor Michael Preston-Shoot, dean of the faculty of health and social sciences at University of Bedfordshire, says local authorities have a positive duty to promote human rights, under the Human Rights Act 1998 and European Convention on Human Rights.
In addition, councils making decisions on the services they are providing to communities and to individuals must have regard to the impact on private and family life.
KEY JUDGEMENTS:
R (Chavda) v Harrow LBC: Judge Mackie QC concluded that decision-makers at Harrow Council unlawfully restricted adult care services to people with critical needs because they had not had "sufficiently drawn to their attention the seriousness and extent of the duties owed under the Disability Discrimination Act 2005", particularly section 49A.
R (Boyejo) v Barnet LBC; R (Smith) v Portsmouth CC: decisions to discontinue resident warden services were unlawful because councils failed to have due regard to the "needs" set out in the general disability equality duties.
Birmingham City Council
On 20th April, 2011, Birmingham City Council lost a judicial review of their decision to fund community care needs only of people who are assessed as having “critical” care needs. The pre-decision position was that, like many local authorities, services would be provided to those individuals assessed as having overall “substantial” and “critical” care needs.
The decision by the Council came at a time when they, as with all public bodies, are facing significant cuts to their budgets in the coming months. The judicial review was brought on the basis that the process the Council had gone through to assess the impact of these particular cuts, was unlawful and contrary to the Disability Discrimination Act 1995.
This case is one of two recent decisions made by the High Court which have declared the Council’s decision making processes as unlawful. It is not necessarily the case that the cuts themselves are unlawful, which is an important point to remember for anyone seeking relief against a decision of their local authority. It has to be recognised that public bodies must make funding cuts, but the process they undertake involving consultation, impact assessments and so on must be a lawful process.
The full judgement giving the reasons why the judge came to his decision has not been published.
CONCLUSION
As a local authority, Argyll and Bute Council must consider all of the above and ensure that in arriving at a decision to close Neighbourhood Networks, they have not breached Equality or Human Rights legislation. It should also be noted that Neighbourhood Networks offers a cost effective support service for people deemed by the local authority to currently have low to moderate needs. Their preventative actions ensure that people remain in these categories but removal of services will impact on people quickly and many could easily move into the substantial or critical categories of need. If low cost models of service, such as Neighbourhood Networks are no longer in existence, support is likely to be significantly more expensive. This would therefore cancel out any short term budgetary savings gained by closing this service and could in the longer term prove more costly for the local authority.
James West Co-Chair VIAS
VIAS acknowledges an article prepared by Community Care Magazine 16 February 2011 as the source for much of the information contained in this statement.