|Skeleton Argument for November 22nd.|
Oct 20, 2011
The Queen on the Application of Peter John Farrington
Hertfordshire County Council
Claimant’s Initial Skeleton Argument
Claimant: Peter John Farrington
Defendant: Hertfordshire County Council
Hertfordshire Action on Disability
Community Support Service
Date of Initial Application: 28th February 2011
Administrative Court Reference No: CO/1873/2011
The Queen on the Application of Peter John Farrington
Hertfordshire County Council
Claimant’s Provisional Skeleton Argument 14th March 2011
1. Despite the defendant’s assertions to the contrary, I believe that failures to follow both the letter and spirit of the DED as defined in the detailed guidelines issued by the EHRC has resulted in the decisions reached by Hertfordshire County Council being not only “Wednesbury” unreasonable, particularly in their disproportionate impact on one of the most vulnerable protected groups under the DDA and the appropriate sections of the Equalities Act coming into force on April 12th 2011, but also appears to me to be “irrational” given the government’s announcements about specific funding being set aside to protect services for disabled people precisely to prevent such measures being necessary and also the concurrent Law Society Review of Social Care law and the long awaited Commission on Future Funding of Social Care which are both due to report back this summer.
2. The defendant also makes much of the authority to raise charges for its services under the relevant legislation and specifically the so called “Fairer” charging guidance issued by the Dept of Health in 2003, but fails to make any reference at all the to parallel guidance issued by the EHRC with respect to the various equalities duties, not least of course the Disability Equality Duty (DED) imposed under Sect 49a of the Disability Discrimination Act (2005), which gave public authorities the specific duties as from October 2006, just after the first consultation and which is still the relevant legislation and guidance in effect at the time the current revisions to charging policy and cutbacks in funding under review are being applied.
3. As I pointed out at the time of the policy being adopted from April 2006 the basis of the 2003 Dept of Health guidance is essentially about “the ability to charge” rather than a true means-testing system that measures the actual “ability to pay” in the same way as say Income Support, ESA and/or Housing benefits do.
4. Whilst this is a fault in the Dept of Health guidance, which I believe, should have already been reviewed under the governments own Disability Equality Duty, it is non-the-less still only guidance and local authorities have full discretion as to whether or not to actually apply charges and the guide is a “rule of thumb” only defining the maximum width of the stick that may be used, who can be hit and how heavily it can be applied.
5. I believe this latest decision is a step too far in terms of reasonableness as precisely the same select group of people hit by the first change in the policy in 2005/6 are those who yet again are expected to bear the bulk of the additional charging from this April. In addition I will be seeking to establish that the process followed was flawed at almost every stage thereby invalidating the resulting decisions on procedural grounds as well as under the Wednesbury and Irrationality grounds referred to above.
6. Prior to 2006 Hertfordshire was recognised as one of the “fairer” local authorities when it came to social care with all those receiving 5 hours or less of care or its equivalent in day centre attendance or a combination of both completely free of charge which also had the extra benefit of greatly simplifying the assessment process and so this became the “norm” for around 2,500 service users given at least the basic levels of care they required but cutting down on administration costs and allowing all to receive this basic minimum level of care provision free of charge,
7. For those receiving more than five hours care the personal allowances used were set at a reasonable level based on Income Support or Pension Credit plus £60 to cover the additional costs of disability over and above the base line means tested benefits used for comparison. At this point income from earnings of the user and/or their partner was included as it was household income which was the basis for charging. Again a very fair and balanced way of ensuring those who could actually afford to pay only contributed in line with the resources available to them i.e. the ability to pay.
8. Following the 2005 consultation this all changed and the main group affected were about 2.500 service users who now came under the revised charging policy contained in the 2003 Guidelines with an average contribution of a £25 per week based on the revised policy bringing in about £4 million but with additional administration costs of £1 million. The net result being a net loss in the resources available to these disabled people of £4 million but without any additional services being made available as a result, despite one of the main “selling points” of the change during the consultation being that the five hour rule was artificially restricting care packages to 5 hours.
9. Interestingly when asked during the latest consultation just how many had had care their packages increased from the basic five hours as a result of the new regime they were completely unable to answer this question despite their recognised duty to be monitoring the impact the revised charging policy was having on users.
10. The “take” from the revised charges grew year by year with a target being set for 2010/11 of £8 million, based on increases due to inflation and an increasingly tight control of the amounts allowed under Disability Related Expenditure with the revised allowance of £30 per week being lowered for many who were reassessed and found (in the authorities opinion) to have lower “provable” expenses in the region of £20.
11. The average charge for those in this group who were in receipt of both middle rate DLA care and the special severe disability premium to Income support had by this stage increased to about £35 per head per week. Whilst those with greater resources available to them still not paying anything at all as less of their income was directly attributable to them as individuals and all “earned income” is disregarded.
12. The contribution for those over 60 was roughly the same per head as those under 60 but based on a higher “protected income” level of £40 in 2006 which had risen to about £50 per week by 2010/11 and in some cases closer to £70 per week if they qualified for savings credit as well. The justification for this huge differential between those over and less than 60 years of age has never been fully explained and/or justified other than “that’s what the guidelines say we can do”.
The Revised Policy 2011/12
13. Under the revised policy this average charge will increase to about £55 per week for the very same small group of people as before whilst those with greater access to additional resources and/or support will still paying very little or nothing at all. In many cases this will also mean people having support packages, via direct payments or personal budgets, of about £60 per week, but having to contribute all bar £5 of this back to the authority whilst still having to account for every penny of the original £60.
14. Given the commitment by successive governments and all main political parties to maintain DLA as a non means tested benefit paid to the individual rather than being passed to the local authority this simply doesn’t hold water as a commitment given this doesn’t now apply to those on the very bottom of the income scale i.e. those on Income Support levels but does for those on average or above average incomes.
15. What many have said as part of the consultation was that this is simply a step too far and clearly both unfair and unsupportable given these same people are already suffering from the change from RPI to CPI reducing benefits up-rating from this year and also having to pay the increased rate of VAT that has applied since January 2011 but which will not be reflected in their benefits until April 2012.
16. Whilst I and others believe this already effectively combines to meet the criteria for being “Wednesbury” unreasonable given those with most pay least and those with least pay most, for some the position is even worse and that is for those currently receiving their support via the Supporting People Initiative funded by central government but administered by local authorities.
17. Under the current arrangements under this scheme the criteria used for charging is eligibility for means tested housing benefit making the service free for those on that level of income but for those with greater resources available that prevent them being eligible for housing benefit having to contribute towards the cost as they are rightly deemed to have the “ability to pay”.
18. Under the revised policy from April 1st 2011 this will be completely reversed with many who currently get their services provided free of charge suddenly finding they face a charge of £50 or more a week from their already very modest incomes and those with greater resources available to them actually now getting the service free because of the at times perverse way the so called “fairer” charging guidelines work.
19. At the same time, of course, the budget for supporting people services is being slashed by 50% so those people will be paying more for a lower level of service and with other organisations like Hertfordshire Action on Disability having their funding drastically reduced as well the combined net effect on disabled people is completely disproportionate and I believe indefensible in any civilised society.
20. It is clear that the funding of social care in a sustainable and fair way is now an area that needs to be urgently reviewed precisely to remove anomalies such as those described here and as the results of the various investigations into this area of public policy are due to be released shortly I believe that it is irrational to be making such drastic changes current arrangements only a few months ahead of this.
Compliance (or lack thereof) with the Disability Equality Duty
21. Essentially this falls under three distinct but interconnected areas the first of which is the acceptance that the DED requires more than just simple consultation but active involvement at every stage of the decision making process by disabled people in order to inform that process before rather than after the event. This being a common thread in much of the case law discussed in the Law Society Gazette review of 10th March.
22. The second being that to enable fully informed debate and proper consultation the proposals being consulted on need to be presented in a clear and understandable form indicating the reality of the impact the proposals will have rather than giving a false impression that implies the exact opposite applies particularly in terms of exactly who it is that will be expected to be paying more.
23. I have yet to meet anyone, other than HCC, who having read the consultation document and then seeing the actual impact of the proposals in real life situations as I have detailed above who do not see a conflict between the two accounts that amounts to a misrepresentation. Nowhere is this clearer than the complete absence of any worked examples for the under 60’s in the original consultation document and the only one used in the final report to Cabinet being completely unrepresentative of the main group who will actually be affected by the changes.
23. Another key failing of this review of policy is not having carried out the required Disability Equality Impact assessment but instead looking mostly at the potential for the policy changes to impact on other protected groups by carrying out a more general Equality Impact assessment instead and then only after the consultation has ended and therefore without any chance for those directly affected by the policy changes to be involved and/or able to respond to the flaws in the final impact assessment.
24. Further than this the failure to actually involve disabled people in the preparation of the original policy proposals and/or the equalities assessment that was carried out is in of itself directly contrary to the best practice guidance issued by the EHRC. I can put this no more clearly than to simply re-state that the only true experts in disability are the disabled themselves and an “in house” expert is no substitute.
25. Perhaps more disturbing is the fact some aspects of the policy change where directly misrepresented during the consultation including claims during consultation events that even after the changes are applied Hertfordshire would still be among the lowest charging authorities when in fact the complete reverse is true.
26. Above all though their appears to have been an abdication of the duty to fully consider the equalities implications of their own decisions on the basis they are only following the guidelines laid down by the Dept of heath on the one hand and then rather than considering if the policy should be implemented locally simply justifying doing so by referral to other local authorities having already decided to do the same, as if that is a justification in its own right given Councillors and especially Cabinet members have a clear duty to exercise their own judgement as to whether policies should be put in place given the general duties under the equalities legislation and they can not simply blindly follow what others have decided to do.
The Reduction in funding to third party organisations
28. Whereas the defendants have found it difficult to identify exactly what it is that I have objections to in the way the charging for care process was handled and the validity of the decisions reached, which I hope the above response has helped clarify at least to some degree what I feel is self-evident in the documentation I have provided, I must confess I am somewhat at a loss to understand the legal arguments provided for justifying the reductions in funding and restructuring of key services.
29. The defendants assert that if their was a problem with the funding issue it was the responsibility of the organisations concerned to bring an action for judicial review if they were unhappy, but my understanding of the process which is shared by both the organisations referred to in this application, is that only an end user of the services who will be directly affected by any cuts such as myself who may bring such an action for judicial review especially if aspects of the Human Rights Act are involved. Clearly the organisations are “interested parties” to such an application but as we all understand it they themselves are unable to instigate such proceedings themselves.
30. In addition to the legislation and guidance already listed in the above I will be relying mainly on the case law as identified in the Law Society Gazette which I have already provided to the court and which I believe fully supports the grounds for this application not least in terms of the failures to have due regard to the Disability Equality Duty.
31. As can bee seen it has been clearly established that local authorities must have due regard to those duties when making any decisions which will impact on the lives of disabled people and I submit that on this occasion Hertfordshire County Council have fallen far short of the required level of diligence and regard for the duty throughout the entire process thereby invalidating the final policy decisions they have reached and these issues should therefore be referred back to them for a fresh consultation and/or a reconsideration of each of those decisions in the light of those failures.
Peter John Farrington
14th March 2011
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Legal Challenge to increased charges and cuts in services by Hertfordshire County Council
Mar 3, 2011
This is the detailed application I have lodged with the High Court requesting a full Judicial Review of Hertfordshire County Council's changes to policy on charging for care together with cuts in services and the slashing of funding to the very third party organisations who are expected to pick up the slack as from April Fools Day 2011 when the cuts start to bite.
Case Lodged 28th February 2011 at the Royal Courts of Justice
Detailed Statement of Grounds
Hertfordshire County Council have clearly failed to meet their duties under Section 49(a) of the Disability Discrimination Act as amended by the Disability Discrimination Act 2005 commonly known as the "Disability Equality Duty" (DED) which will form part of the "General Duty" under the provisions of the Equalities Act 2010 which comes into force in April 2011.
The consultation on proposals to change the Council's Non-residential Services charging policy, carried out between August and October of 2010, failed to meet the standards required under the DED and the provisions of the Department of Health Guidance for Councils with Social Services Responsibilities issued in 2003.
The Council have failed to have due regard of the government's announcements regarding additional funds which are being set aside precisely to offset the disadvantage disabled people and their carers face due to the austerity measures.
The planned reductions in funding to organisations such as Hertfordshire Action on Disability and the Supporting People Service and proposed restructuring of The Money Advice unit have/or are being put through without any consultation with those directly affected and in direct contradiction of the stated rationale for changes to Non-residential Services policy.
The changes in Non-residential charging policy are due to be implemented from 1st April 2011 it is therefore imperative that the issues raised in this application be resolved prior to that date given the chaos, uncertainty and distress to service users that will ensue if the changes are implemented and then have to be reversed at a later date. This is particularly true for the two grant funded bodies who are currently having to consider staff reductions and redundancies based on the reductions in their funding recently announced by Hertfordshire County Council.
It is also in Hertfordshire County Council's best interests that this matter be resolved as a matter of urgency in order that suitable provision can be made for funding any shortfall in revenue and/or the need to provide additional grant aid over and above that now proposed to Hertfordshire Action on Disability and Community Support Services throughout the county as a result of any lawful consultation and reconsideration of the policies in question under this application for judicial review.
As with the recent judicial review of the decision by the Leaders' Committee of London Councils to cut £10m from their £26.4m Grants Scheme, where it was held that decisions taken were unlawful because of failure to meet Public Sector Equality Duties, the result of this judicial review may well have far reaching implication for other local authorities and the bodies which they fund to provide services to disabled people.
An urgent clarification of the law in regard to what constitutes a "lawful" consultation in relation to changes in policy relating to disabled people and or the subsequent consideration of that policy will, therefore, be of benefit to all the service users of other local authorities in England, many of whom are currently in the process of imposing similar increases to charges at the same time as reducing services to these disabled people and at the same time also reducing the level of funding provided to the third sector organisations expected to pick up the slack following those cuts.
The interim order I am seeking is as follows:
"It be ordered that changes to the Hertfordshire County Council's Non-residential care charging policy and reductions in funding to relevant grant aided providers of services to disabled people in Hertfordshire, such as Hertfordshire Action on Disability and Community Support Services, be put on hold pending the result of the judicial review and thereafter be subject to any further directions or orders made by the court in respect of the judicial review in question."
Main Facts Relied on are as follows:
1. The original "Consultation" Document sent out via letter on the 21st July 2010 (pg 54 - 56) stresses throughout that the main rationale for the changes is to avoid making cuts in front line services. However, later decisions by HCC will clearly impact on front line services due to cuts in funding of organisations that provide services to disabled people and most notably with the 50% cut in the budget for the Community Support Service.
2. No mention is made at all about the inclusion of services provided by the Community Support Service to those in sheltered accommodation including those with extra care arrangements and/or those living in the community who none-the-less need to make use of their services from time to time like myself. In fact it was only the fact that I was considering moving into such sheltered housing myself whilst the consultation was underway that a member of staff "warned" me not to follow that option as they were aware of the implications for my net income if I was relying on the existing arrangements for Community Support.
3. In fact HCC went even further and actually forbade front line workers discussing the changes to charging with this particular group with the only direct information about the impending changes being that contained in the letter from Community Support Services to clients dated 4th February despite the fact many in this group will be hardest hit by the changes as currently those on housing benefit are entitled to free support but will be subject to the full impact of the changes to the tune of approximately £55.00 per week in many cases (pg 91)
4. Again no mention is made about the increase in charges for Meals on Wheels but this is included in the final report as though it had been part of the main consultation.
5. Despite it being obvious that the main group affected by the changes will be exactly the same group as were hit by the original change to "fairer" charging i.e. single adults in receipt of the severe disability premium of Income support or the equivalent for those on pension credit as they will now be extremely likely to lose the entire amount of the premium in charges but the "worked examples" used during the consultation (and indeed also the current charging for care leaflets provided by county to potential service users) fail to clarify this.
6. In effect HCC will now be taking the equivalent of the Carers allowance from disabled people even where they are only providing a few hours of care per week whereas those in receipt of Carers allowance have by definition to be providing a minimum of 35 hours of care per week to qualify.
7. It is impossible to read the original consultation documents without being given the impression that those who will be being expected to pay more would be the people with the means to pay because they were relatively affluent when the reality is that it is those on Income support levels of income who will effectively have 100% of their "disposable" income taken from them.
8. Whilst an albeit flawed consultation was carried out for some of the changes to the so called "Fairer" charging policy no such consultation has taken place with regard to the reductions if funding to key providers of support to disabled people which as recent case law has established is of itself a direct breach of the Disability and other Equality Duties the local authority has.
9. Perhaps the most stark evidence that this consultation and the Equalities Impact assessment were little more than a tick box exercises is that simple fact that the original proposals as included in the consultation have passed into policy with only minor changes to the day to day running of the scheme with regard to appeals but which still do not provide a truly "independent" review other than via a complaint to the Ombudsman.
10. Above all what is evidenced by all the documentation I have provided is that HCC have asked only "Can we do this?" and not asked the question "should we do this?" which should be the paramount concern of local authorities who are charged with helping to redress the disadvantage disabled people face rather than actually make matters worse for them.
N.B. The change in the policy will increase charges for care dramatically, especially for those on benefits, with people like myself seeing an increase in costs from about £35 per week to £55 as from April Fools Day.
Even worse for those current under the supported People Services in sheltered housing or extra care sheltered housing will see an increase from zero now (if they are in receipt of housing benefit) to the full charge of about £50 to £55 per week in one giant leap.
As I said in my "Everest" thread over on Ouch this is a battle I have to fight, even if I lose, because at least then the local authority will know that their actions are being challenged and not simply hidden in this years budget as "efficiency savings" with no mention at all that services are being cut or that disabled people are facing dramatically increased charges and that third party organisations expected to pick up the slack have all had their funding slashed.
For those wishing to follow the progress of the case the case number issued by the Administrative Court at the Royal Courts of Justice in London is CO/1873/2011
Further updates will follow as and when I have more news.
As it says in the Bible: "Go though and do likewise". LOL
Peter aka "Sociable"
"Go placidly..be gentle with yourself..strive to be happy"
But don't take any $hit from either the DWP or your Local Authority.
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- Latest reply: Mar 3, 2011
Sep 28, 2010
The child in the Matrix had it right "There is no spoon".
Well not for me anyway
Time to quit so somebody please pull the switch.
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