Eligibility, Birmingham and Cuts

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While awaiting the details of the court judgement, there was an important ruling yesterday that Birmingham Council’s attempt to limit eligibility to social care services to those who have ‘critical’ care needs is unlawful.

Drawing out some of the definitions to what this actually means and could mean requires a look at the details of those who brought the case to court.

There were four defendents which the BBC explains include

a 65-year-old woman with severe learning difficulties who receives 24-hour care in a home paid for by the council

25-year-old man with a rare genetic disorder and severe learning disabilities who receives overnight respite care, also funded by the council

30-year-old deaf, autistic man with severe learning disabilities who is prone to self-harm. His specialist day care would also have gone under the plans


a 36-year-old woman with severe learning difficulties whose day care centre will close and who is also set to lose respite care

It’s useful to go back to the definitions of what ‘critical’ and ‘substantial’ needs are to understand fully the implications of councils moving the eligibility criteria from one stage to the next.

Critical needs exist where –

• life is, or will be, threatened; and/or
• significant health problems have developed or will develop; and/or
• there is, or will be, little or no choice and control over vital aspects of the immediate environment; and/or
• serious abuse or neglect has occurred or will occur; and/or
• there is, or will be, an inability to carry out vital personal care or domestic routines; and/or
• vital involvement in work, education or learning cannot or will not be sustained; and/or
• vital social support systems and relationships cannot or will not be sustained; and/or
• vital family and other social roles and responsibilities cannot or will not be undertaken

Whereas Substantial needs (those that Birmingham are stating they are no longer able to meet) exist where –

• there is, or will be, only partial choice and control over the immediate environment; and/or
• abuse or neglect has occurred or will occur; and/or
• there is, or will be, an inability to carry out the majority of personal care or domestic routines;
• involvement in many aspects of work, education or learning cannot or will not be sustained;
• the majority of social support systems and relationships cannot or will not be sustained; and/or
• the majority of family and other social roles and responsibilities cannot or will not be undertaken

A couple of things to be noted here. A differentiation is made between ‘abuse’ and ‘serious abuse’ so that one will be covered and the other won’t. What kind of ‘legal’ test would there be to determine when abuse counts as ‘serious’ or not? Can we see children in similar cirumstances being subject to a differentiation of level of care available depending on whether abuse is ‘serious’ or ‘not serious’? And who is doing the judging? Well, I can answer that last question. It is the social worker involved as I am asked as a matter of course to ‘band’ people according to these criteria.

The obvious glaring point is the lack of thought of any kind of preventative work that sticking so closely to the criteria will create. Where is the hope of creating those very creative personal budgets when only the very bare minimum of essential needs are being met.

I can’t claim anything other than relief that Birmingham case was challenged in court. These criteria and these levels of need look at people as lists of what they cannot do. That goes against everything that we know and the ways in which we practice by looking at strengths and looking at people as individuals. However, the reason the criteria were brought in in the first place was to end some of the ‘postcode lottery’ of care provisions and to bring consistency to who was offered what nationally. Of course, the problem remained that interpretations of these criteria vary so the consistency which is objected by ticking boxes (the only way the officials seem to know to apply it) depends, as mentioned previously on the social worker who is doing the ‘judging’.

Back to this case though, it was brought under the Disability Discrimination Act and hopefully the judgement will be available soon. Hopefully too, local authorities around the country will be leafing through it and realising that the wholesale and slapdash cuts that they are imposing are not legal.

As for the government of millionaires, none of them will be reliant on social care support from the council. They can buy in any support that they might potentially need and cannot understand the distress of those who are totally reliant on the availability of services.  They cannot understand the implication of their gung-ho ideological cuts and the thought of Cameron, Clegg and Osborne claiming ‘We’re all in this together’ sticks painfully in the throat.

Although I fully expect Birmingham to challenge this ruling, I hope that the case is held and that some of the trigger happy cutting is stopped and the very real effect of the cuts agenda is shouted out more loudly and more clearly – not just for those of us who are personally losing services but to raise our voices with those who cannot always shout so loudly.

That is what social justice is about and that is what social working is about.

10 thoughts on “Eligibility, Birmingham and Cuts

  1. Pingback: Eligibility, Birmingham and Cuts - Fighting Monsters - Member blogs - Social Work Blog - Carespace from Community Care

  2. This is a useful early comment on what will prove an important ruling. However, the post is entirely spoilt by the snide ad hominem attacks on the government. It is not this government’s fault that the State is bust, nor are they doing any more than trying to return government expenditure to 2008 levels. I don’t recall that we thought then that the government was vicious.

    It is a very moot point indeed as to whether the increases in government spending since 2008 have had any beneficial effect on service users. Very little of the money has trickled down to the front line and it is that wastage that is the real scandal.

    • Thanks for your comment. While I understand your criticism, I don’t necessarily accept it because I do think that the cuts are ideologically driven and don’t agree with the choices that have been made. However, I don’t claim to be right, just to be offering my opinion.
      There are always choices to be made and while I am no economist, the effect of service provision is that it is has been progressively worsening over the last decade. No, I don’t excuse the last government but things for service users have got worse. That I see and that I know.

  3. I think there’s a whole range of issues with the FACS criteria. Firstly methodologically speaking it is very, very flawed; the whole care-planning approach was meant to put the experiences of those being assessed at the centre, yet on my assessment forms, after completing the sections about how the person subject to the assessment felt and what they felt they wanted this was accompionied by a standardised tick-list. The two methodologies just don’t mix, you can’t have on one hand a qualitative interpretivist assessment, focusing on an individuals subjective experiences combined with a very quantitive standardised tick-list of pre-prepared categories.

    That technical thing aside there is also the affect of the assessor. Despite being standardised anyone who has used the FACS categories of Critical, Substantial, Moderate and Low will testify, that particularly with Critical/Substantial , there is a lot of room for debate and the asessors interpretation (or in fact their team managers or funding panels) is all-important – again at odds with both the care-planning and personalisation philosohy of placing the service users meanings i.e how they feel about their illness/disability and what support they feel they need to live their lives at the centre of the assessment process.

    In my experience substantial was by far the most common category used in assessments, but one thing which concerned me was that as my authority tightened interpretations this led to front-line workers ‘inflating’ needs on assessments; not only does this act to label a person as less able that they are, it also feeds back to the perceptions of managers and raises the bar for what is required to access services and leads to a spiral effect. Should authorities move to critical only, then this kind of pressure will only increase.

    • I think the point about millionaires being disproportionately represented in the cabinet is entirely valid when commenting on the policies they wish to serve out to the rest of us. You used to be able point this sort of thing out without anyone crying ‘foul’. The terms of the debate are now very skewed indeed with commentators falling over each other to call welfare and social care commitments unaffordable and unsustainable to such a degree that it’s difficult to assert an alternative view without sounding like wild eyed revolutionary. I don’t see why choices about spending have to be regarded like this: the use of national resources is in the end a political decision not an abstract and normatively neutral economic consideration. To assert otherwise is in itself an ideological and political statement. Why is expenditure on the support of the vulnerable so contested when other streams of government funding are not under such radical challenge? This argument is put much more eloquently by commentator and historian Tony Judt in his analysis Ill Fares the Land, which I’ve been enjoying in lunchbreaks lately.

      • Neil – my experience exactly replicates yours in those respects regarding almost defaulting to ‘substantial’ and the subjectivity of applying criteria.

        Guilsfield – my point about the millionaire’s cabinet is really one of cumulative effects of a number of policies and cuts, of which this is one. I think that there is a massive disconnect between the experiences of the governing from the governed. That is my concern. Now there is a ‘political class’ who never had to struggle to get a ‘real world’ job. They cannot understand the implications of tarring people with the ‘benefit scrounging’ brush and have never actually had the fear of poverty resulting from unemployment staring them in the face nor the need to be wholly reliant on state provided care services. That is my concern about our political system now.

  4. Hello CB
    I know you also work as a DoLS Best Interest Assessor. I’m sure that on your training course and updates you’ve been told that public bodies are not allowed to provide or fund care in residential care settings that amounts to an unAuthorised Deprivation of Liberty. I’ve heard several lawyers speaking on the subject and speculating that the situation could easily arise that a BIA might say they were unwilling to recommend that an Authorisation be given and comment on a resource issue, eg. by refusing to sanction the removal of a resident to a cheaper care home setting, or declining to agree a placement represented the person’s ‘best interest’ until additional support to permit more activities was agreed as part of the care plan. This sounded like an academic point and a remote possibility the first time I heard it but I wonder if this will become more important with cuts on the agenda everywhere. I’m aware of some instances where additional resources have been given where in an equivalent situation with no DoLS issues, they would not ordinarily have been released. While the specific point about avoiding or mitigating a deprivation of liberty would only apply if the resident / relevant person’s care plan meant they needed a high degree of supervision or appropriate restraint because of their care needs (and DoLS procedures being evoked), I do wonder if ‘best interest’ might also represent a route for a legal challenge under the main part of the Mental Capacity Act? Much as I hate to involve lawyers in social work, I suppose the point of these new pieces of legislation was to protect and empower the vulnerable, so this might not be a terrible thing, even though a particularly stroppy solicitor’s letter can spoil your working day. I’m posting from work when I shouldn’t be, so, after having planted that subversive thought in the minds of readers of the blog, will creep quietly away.

    • I can definitely see this coming up as an issue and to be honest, I hope there are more cases taken to court, not least to clarify the case law which is very fudged at the moment. It could potentially cost the councils an enormous amount of money but my worry is that there are so many unauthorised deprivations of liberty around and about that are not being picked up on. Those who are taken up by solicitors will be those with interested and involved families/advocates. Everyone should have access to good quality, least restrictive care – but it costs.

  5. Full details of the judgement arer now available here:

    In essence though all these requests for judicial review are not about the actual decisions themselves but proving that the LA involved did not follow the correct process in reaching its decision, including importantly the Public Sector Equaqlity Duty from the old DED and the new combined duty under the Equalities Act which is now in force since earlier this month.

    My own case against the cuts in Hertfordshire is now awaiting a hearing date and I think a tipping point has or close to being reached whereby somebody has to sit up and take notice of what is going on and realise that there is a need for a review of the whole issue by both central and local government.

    Funnily enough such a review is due to report back in june/july and it should now (in my opinion) be obvious that was needs to happen now is a monatorium on the cuts pending that review along with a statement from the government clarifying the “protection” that is being put in place viz a viz the £2 billion “promissed by Cameron and how that will work in practice.

    A good start on this would be ring fencing about half a billion of the fund specifically to offset the savinging being made by LA’s from increasing charges for care and/or reducing budgets and/or increasing criteria thresholds and/or reducing funding of third sector organisations.

    Government and LA’s have to put up or shut up as to who is responsinbe for protecting those of us who need sheltering from the wort of the austerity measures and importantly David Cameron will now need to answer the effective challenge to his honesty and commitent to equality shown with the building gulf between the rhetoric he uses and the reality of what is going on up and down the country.

    • Peter, thank you for the link. I’ll read through the judgement today. I think there are issues about how and why the decisions were made to make these cuts to social services but I think there is a government ideological agenda to cut provisions by local authorities and the central government can’t shrug off responsibility.

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