As budgets tighten, challenges over eligibility for services are a growing concern
Legal challenges over adult social care are the biggest concern among council legal teams as authorities struggle with rising demand and reduced budgets.
In LGC’s survey of local government law professionals, 42% of the 283 respondents said adult social care was the area where their council was most likely to face legal action.
Just over a fifth of respondents identified children’s services as the most risky while 17% highlighted housing.
Doreen Forrester-Brown, director of law and democracy at Southwark LBC and president of Lawyers in Local Government, said the threat of court action across all three areas stems from the withdrawal of services and shrinking eligibility.
On adult social care, she said: “There are [fears] about finding suitable homes and the funding for people to live independently. [It is about] access to services and assessment levels; challenges are coming on eligibility for ever-reducing services.”
Judith Barnes, partner at Bevan Brittan, said the risk of legal challenges on adult social care was a direct consequence of cuts to local government budgets.
“As a result of austerity and demographic changes, increasing pressure is put on the system, and in a number of places it is creaking,” said Ms Barnes.
She cited a December 2016 report from the Local Government and Parliamentary & Health Ombudsmen on health and social care complaints, which said complaints were on the rise.
“There are increasing complaints in adult social care. They are largely about maladministration but in some cases they could have been legal challenges,” said Ms Barnes.
She said complaints that could have been taken further included cases of improper assessment of need and eligibility, and instances where care homes or domiciliary providers were charging for services they could not demonstrate they were delivering.
Ms Barnes said claims that councils “have not been through the proper process of assessing whether someone has been deprived of their liberty appropriately” could also rise in future.
Michael Mousdale, partner at law firm DWF, suggested the high levels of concern about social care and housing reflected the fact these were issues dealt with by in-house legal teams. He said work relating to contract and procurement law was another major source of risk for councils because claimants such as developers and suppliers had the funds to pursue legal action. However, councils tended to outsource this work, he said.
Mr Mousdale also suggested the availability of public funding to help individuals take legal action relating to children’s services or adult social care, and this could be a factor in the level of risk to authorities.
“[Children’s and adults’ services are] areas where there is public funding, through legal aid and through publicly funded agencies such as Citizens Advice or firms doing pro bono work,” said Mr Mousdale.
He added there were longer time limits on taking legal action when a case related to child or adult care – usually three months – than there were in procurement cases for example, which have a 30-day limit.
We have a healthy level of challenge in terms of allocation of housing, which band you get into, overcrowding; it’s a real problem and more authorities are seeing challenge
Ms Forrester-Brown said in children’s services,
the requirement for care proceedings to be complete within 26 weeks, which is often difficult to achieve, was a likely source of legal challenge.
On housing, Ms Forrester-Brown added there was a growing risk of people challenging councils if they felt their housing need had not been properly assessed, or the council had failed to provide them with adequate housing.
“Homelessness is a major problem in big cities, and we just haven’t got the housing supply to meet demand,” she said.
“We have a healthy level of challenge [in Southwark] in terms of allocation of housing, which band you get into, overcrowding; it’s a real problem and more authorities are seeing challenge.”
Ms Forrester-Brown added councils’ use of temporary accommodation and housing outside of their patch was another area where they were vulnerable, particularly for inner-London boroughs.
Aside from challenges to housing allocations, Ms Forrester-Brown said councils’ efforts to increase the housing supply is fraught with complexity. In particular, she highlighted setting up housing companies; ensuring the housing built is “policy-compliant”; agreements with development partners; and compulsory purchase orders.
Regeneration and the development of affordable housing was identified as the area where legal arrangements are currently presenting councils the greatest challenge, along with issues related to integrated health and social care. Both were highlighted by 18% of respondents.
Creating vehicles for entrepreneurial service delivery and generating economic growth were each highlighted as the greatest challenge by around 15% of respondents.
Austerity is driving risk of court action on care and housing