The legal framework for social care provision is set out in the relevant community care legislation and related guidance. This legal framework allows for local authorities to restrict service provision to those who meet qualifying criteria in terms of ‘needs’ and, under certain provisions, the individual’s inability to arrange or fund alternative care. The very essence of social care legislation is the avoidance of intolerable standards of living for people with disabilities or long term conditions. So whilst the existence of disability is a crucial consideration for the decision-maker, the categorisation of a person as having a disability opens the door to positive entitlement, rather than to discrimination or less favourable treatment. It is therefore difficult, at first, to see how the Act could be relevant to social care.
When discharging social care functions, the local authority is already obliged to comply with government guidance that may go wider than its actual obligatory duties or its discretionary powers, such as the guidance on Safeguarding. Also of course local authorities are obliged to comply with the Human Rights Act and European Convention caselaw on its interpretation, so as to allow human rights concepts to pervade their policies and practices. Other equalities laws make specific demands on local authorities as well. But nothing within the DDA requires a local authority to act outside its powers, so making reasonable adjustments for disability can only extend so far as making lawful reasonable adjustments.
In order to comply with the obligations under the DDA a local authority will need to demonstrate that it has considered not just its obligations as service provider, but the residual obligations under s21B-E and Part 5A and the general duty to have regard to the need to promote equality of opportunity set out at s.49A DDA.
The Code of practice in respect of s.49A duties explains that what is needed is for a public authority to have due regard to the general duty to promote equality of opportunity so as that they can demonstrate that in all their decisions and functions authorities gave due weight to the need to promote disability equality in proportion to its relevance.
The Code clarifies that this general duty does not create new individual rights for disabled people. It reinforces existing duties within the DDA and aims to encourage public authorities proactively to tackle discrimination. Obviously disability equality will have great relevance to a decision as to what level of eligible need to meet and how to meet this need in respect of individual care plans. It is not thought that it is common for panel decisions or front line social workers’ recording, or commercially-provided branded assessment documentation to allow for an audit trail that shows these duties were considered, and maybe practice should change in this regard.
Although it is clearly established that Local Authorities are lawfully entitled to meet need in a cost-effective manner, the way in which this is done may engage the s.49 general duty and as such practitioners should indicate that they have, whilst determining how to meet the eligible needs of an individual, given due regard to their obligations under s.49 to promote equality of opportunity.
Similarly in reaching such decisions it would be proportionate to give significant weight to the impact this will have on those with disabilities in the local authority’s area. That said, the code does recognise that “it will not always be possible for authorities to adopt the course of action which will best promote disability equality but public authorities must ensure that they have due regard to the requirement to promote disability equality alongside other competing requirements”.
The Courts have taken seriously the obligation to have due regard, but where satisfied that full and proper consideration has been given to the general duty under s.49A have refused to set aside decisions which do adversely affect disabled people as was demonstrated by the Court of Appeal’s decision in R (on the application of Domb, Sobral and Bushiwa v Hammersmith & Fulham London Borough Council and Equality & Human Rights Commission [2009] EWCA Civ 941. Therefore where proper consideration of the general duty has been given an individual, will not be able to rely on s.49A to challenge eventual non-provision on the basis of disability discrimination.
In relation to specific care plans the local authority would need to demonstrate that where decision does have an adverse effect on a person affected by disability it will not be unlawful where the restriction on provision was in accordance with the community care legislative framework and took into account the obligations as service providers and under s21B-E and Part 5A.
In R (on the application of AM) v Birmingham City Council & University Of Birmingham [2009] EWHC 688 an application for judicial review was rejected – the Court was satisfied that the local authority’s decision, not to fund adaptations to a university, allegedly to meet the need of a disabled person to use the toilet whilst studying, came after a detailed assessment, including consulting AM, and had taken into account the need to promote equality of opportunity to disabled persons in education, together with other obligations owed to disabled persons, as required by s.49A of the DDA.
The Court commented that it was clear the local authority had taken considered the importance to AM of attending university and his needs in forming their decision that the adaptations or additional services he had requested were not necessary.
Again it is worth remembering that although Part 3 and Part 5A outlaw discrimination, less favourable treatment even where this is directly related to disability is permissible where justification, as set out above, exists.