A Court of Appeal judge has thrown out a case against Oxfordshire County Council, the borough in which David Cameron’s former constituency sits. And in doing so, he has effectively given local authorities a free pass to override both national law and the recommendations of the UN.
As The Canary previously reported, on Thursday 17 August the Court of Appeal was hearing the case of Luke Davey. In November 2016, a judge had granted the 40-year-old from Oxfordshire a judicial review against the council. This followed its 42% cut to the amount he received to pay for his care and support. Davey has quadriplegic cerebral palsy, is registered blind, and requires assistance with all of his intimate personal care needs.
Davey’s case was a legal first, because his lawyers used the Care Act 2014 to argue that the council had broken the law.
The establishment sticking together?
It is understandable that the claimant, Mr Davey, and other members of his family objected to the updated needs assessment, which has resulted in a substantial reduction in the level of the claimant’s personal budget. I have great respect for the manner in which the claimant, his family and his team of carers cope with his difficult situation. But that is not the same thing as holding that the council’s actions have been unlawful.
An opportunity missed
Davey’s case was the first time the Care Act 2014 had been tested in court. The council argued that there were two underlying reasons for its decision to reduce Davey’s personal budget. Specifically, that:
- He could spend more time alone without the benefit of a Personal Assistant being present.
- Davey could and should reduce the amount which he pays to his Personal Assistants.
But his solicitors said that, by cutting his support from £1,651 per week in 2015 to £950 a week now, Oxfordshire County Council had breached Davey’s rights under the wellbeing principle of the act. Specifically, that it will cause or pose:
- Additional and excessive anxiety to Davey, from having to spend unwanted time alone.
- The risk of Davey losing his established care team of 18 years.
Who cares about wellbeing?
The wellbeing principle of the Care Act says that a council has a legal duty to “promote” a person’s wellbeing. Specifically:
- Personal dignity.
- Physical and mental health and emotional well-being.
- Protection from abuse and neglect.
- Control by the individual over day-to-day life.
- Participation in work, education, training or recreation.
- Social and economic well-being.
- Domestic, family and personal relationships.
- Suitability of living accommodation.
- The individual’s contribution to society.
But Bean seemingly disagreed.
A spokesperson for the council said:
We will continue to work with Mr Davey and his family to ensure he gets the provision of essential services he needs. The Court of Appeal has confirmed that the Council’s assessment of Mr Davey’s care needs and the allocated amount for his personal budget is appropriate and lawful. All local authorities who provide adult social care services against a background of financial constraints in the public sector are having to make difficult decisions.
But Ellen Clifford from Disabled People Against Cuts (DPAC) told The Canary:
We are deeply disappointed by today’s judgement. It is further evidence of how, as the UN found on 31 August, disabled people’s right to independent living is going backwards. Luke’s social care package is unsustainable and his future is now bleak. But he wasn’t just taking the case for himself. He was taking it for all the thousands of disabled adults who are suffering as essential support is being slashed. What we can’t now do is to give up. If the courts won’t give us justice we must step up our fight to demand a society based on principles of equality and fairness.
Svetlana Kotova, Disability Justice Coordinator at Inclusion London told The Canary:
With cuts like Luke Davey has experienced goes disabled people’s independence, choice, control and the opportunity to live a normal life. Today the Court of Appeal confirmed that local authorities can get away with doing this.
But without adequate levels of support more and more disabled people are existing not living. This is one reason why the UN said social cuts in the UK have led to a ‘human catastrophe’.
This case has destroyed any hopes that the Care Act 2014 will transform our experience of social care; showing how easily local authorities can override disabled people’s views about what’s good for us. So it is time the government recognises and urgently addresses the huge crisis in social care. It needs to ensure adequate funding and the introduction of an appeals system. This would give disabled people a fair chance to challenge the views and decisions of social workers.
As The Canary previously reported, in London alone some councils have cut sick and disabled people’s support by up to 68% since 2015. Campaigners hoped Davey’s case would set a precedent, allowing other disabled people to contest the gratuitous cuts to their support.
But now, with even one of the highest courts in the land siding with a council, disabled people must be feeling they’ve got few places left to turn to for help.