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Lawyers warn of landmark Care Act appeal implications

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The UK’s statutory equality body has intervened in a landmark legal case concerning the Care Act 2014 which lawyers say could have significant implications for local government.

The Equality and Human Rights Commission has made a submission in support of a case brought by Luke Davey, who is challenging a February High Court ruling that Oxfordshire CC’s decision to cut his personal care budget by 42% was lawful. 

It is the first time a case under the Care Act, which introduced a general requirement for councils to “promote” an individual’s wellbeing when carrying out social care functions, has been heard at the Court of Appeal.

Following assessments in 2015, Oxfordshire reduced Mr Davey’s personal care budget from £1,651 to £950 a week.

Mr Davey, who requires assistance to live in his own home and pays a team of personal assistants, secured a judicial review of the decision, claiming the reduced budget would result in him spending more time alone and lead to anxiety.

But in February Justice Morris ruled that Oxfordshire CC had made “no legal error” in reducing Mr Davey’s personal budget after the council argued that spending more time alone would help Mr Davey “develop greater independence and reduce anxiety”.

The Court of Appeal heard evidence at a hearing on 17 August and a decision is due next month.

Paul McDermott, a partner at law firm Trowers & Hamlins, told LGC the case has the potential to shift the balance between the Care Act’s wellbeing principles and considerations of cost.

He added: “People in the sector are right to be concerned… because there could be much less emphasis on the state’s ability to afford supporting people.

“It is possible that the court gives a wider interpretation to what the sector believes those [wellbeing] principles mean and what the guidance means - that could cost more money.”

Mr McDemott said any broadening of the wellbeing principles could encourage more people to challenge assessments and care packages.

The submission to the court by EHRC, which has a statutory role in monitoring equality and human rights law and a specific power to intervene in legal proceedings, contends that Justice Morris failed to recognise that the Care Act intended to apply the principles on supporting independent living laid out in the UN Convention on the Rights of Persons with Disabilities.

The Care Act’s statutory guidance refers directly to the convention and the EHRC said the Care Act “represents a re-focusing of the statutory framework for the provision of adult social care”.

The submission draws specific attention to article 19 of the convention.

This states that people with disabilities have an equal right to live in the community, choose their place of residence and access support services to prevent isolation - including personal assistance if necessary.

Oxfordshire said that applying the convention would have had no effect on the outcome of Mr Davey’s assessments. The council added that the act itself, rather than the convention, “represents the concrete expression and implementation of ‘independent living’ and is intended to implement those principles”.

Louise Whitfield, lawyer for disability charity Inclusion London which is supporting Mr Davey’s legal action, said the case “could have far reaching ramifications” as it was likely to determine how the wellbeing duty will be applied in practice.

She added: “This is a hugely significant moment because disabled people… are intervening in court proceedings to make their voices heard and ensure the law which was designed to transform social care works for them.”

 

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