Local authorities need to be alert to the wider implications that budget cuts can have on key, if not critical services, says Jackie McGuire

At a time when local authorities and other public bodies are looking to identify and introduce cost-saving measures, the recent decision in the judicial review involving Birmingham City Council’s social care arrangements will be ringing alarm bells.

The judgement amounts to a criticism not of the changes in policy which were being proposed, but of the council’s approach to assessing the impact of the proposed changes on service-users affected by disability.

The Birmingham case concerned the failure by the council to have due regard to promote disability equality under Section 49A of the Disability Discrimination Act 1995.

A similar duty – the public sector equalities duty – relating to the promotion of equality with regard to protected groups, including the disabled and the elderly, is now to be found in the Equalities Act 2010.

The court recognised that the council had to take a decision on the extent to which it would analyse, in detail, the likely impact on individuals of the options which it had identified.

However, the council failed to focus and refine concerns regarding potential impacts on service-users – described in the judgement as ‘dramatic concerns’ – that were initially described at a high, generalised level.

This failure meant that the council was judged to have fallen short of what was required in order to discharge its disability equality duty. The court also concluded that, since the council had failed to ask the right questions, the consultation processes in relation to the proposed policy changes was inherently flawed.

The court did not consider the detail of the proposed policy changes. It was not required to do this as the service-users who raised the challenge did not ask the court to decide issues of priority in the allocation of resources.

However, it is not the practice of the courts to second-judge policy decisions where required processes and procedures have been followed.

Lord Neuberger remarked in the House of Lords, that in a context where long-term strategy considerations, expertise, political and social awareness, and local knowledge all had a part to play, it was inapt for the courts to interfere, except in clear and exceptional circumstances.

It should not be assumed, therefore, that there is anything in the Birmingham case to suggest the courts will take a view on policy decisions solely on the basis of unpopularity or sour grapes. Nor should resource allocation that is thought to be unfair be confused with resource allocation which results in discrimination.

The Birmingham case raises a number of other issues which are worthy of note, including the challenges faced by local authorities in addressing, often within very demanding timescales, the implications of budget cuts which have serious implications for key, if not critical, services.

The pressures are compounded where challenge-proof budget-setting processes are dependent on the completion of equality-impact assessments which will, almost inevitably, include consultation with service-users.

It was not that Birmingham City Council failed to consult. Nor was it the case that the council failed to devote time and resources to considering the implications of the proposed changes.

The judge acknowledged that council officers were ‘working under pressure of time and resources’, and he was clear on the point that he should not make any personal criticism of officers of the council. It is also apparent from the judgement that the council took the consultation process seriously.

Nevertheless, the judgement of the court is that the council got it wrong. It did not pay due regard to the disability equality duty.

Sadly, the unfortunate juxtaposition of time and resource implications with the increasing complexity and demands of the law suggest there is a risk that Birmingham City Council will not be the only local authority to find itself on the wrong side of a successful challenge to policy changes which impact on protected groups.

The judgement runs to some 191 paragraphs. It contains a detailed analysis of the consultation process and of the equality needs impact assessments that were undertaken by the council at both a corporate and directorate level. It is not an easy read.

It paints a picture of a complex policy landscape for social care which is, in part, reflected in Scotland. One has to question whether this level of complexity is good for service-users, and whether there is a reasonable expectation that it might be simplified.

In the Birmingham case, the service-users were all severely-disabled adults who were, on the facts of the case, justifiably concerned that their care and support needs would not be met under the council’s proposed service-delivery plans, and it is difficult to read the case without feeling a degree of sympathy for their anticipated plight.

However, it is not beyond the realms of possibility to envisage situations in which otherwise-sound policy decisions might be sent back to the drawing board, where lessons that might be learned from the Birmingham case go unheeded.

Finally, there are perhaps hints in the judgement that salami-slicing of council budgets and identifying protected services at the outset of the budget-setting process may be incompatible with the need to have due regard to the public sector equalities equality. Food for thought.

Jackie McGuire is head of public sector services, Brodies LLP