July 2012 Successful Challenge on Eligibility Criteria for Social Care

Isle of Wight Council decided to move to a policy whereby it would treat as eligible only those needs assessed as ‘critical’ and those areas of substantial need that ‘place people at greatest risk of not being able to remain at home and be safe’

The Council’s decision was held to be unlawful for two reasons.  Not only was the policy incompatible with the statutory guidance, prioritising those with substantial needs at risk of not being able to remain at home over others with substantial needs created an impermissible hierarchy of needs.

The policy also made it clear that even where a risk was assessed as critical, it would not meet the new eligibility threshold if the risk was assessed as ‘remote’.  This was also found to be in breach of the statutory guidance because

The eligibility bands are based on severity of risk whether or not they are immediate, long term or fluctuating

The policy imposed additional eligibility criteria not prescribed by the guidance and 

The consequence of the new policy was that some substantial risks would be prioritised ahead of a remote critical risk

In addition, the Council were found to have failed to comply with the public sector equality duty.  This case together with the judgement given in R v Birmingham City Council 2011 clearly spells out the correct approach for authorities – particularly when they seek to move to a critical only policy.  The question that must be addressed is ‘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’.



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