Challenge to legality of critical care threshold continues

By Mithran Samuel, adults' editor, on July 20, 2012 10:25 AM| 1 Comment

Lawyers challenging the legality of the critical threshold for social care have vowed to fight on after the High Court rejected their argument.

Solicitors firm Irwin Mitchell, on behalf of four disabled people living in West Berkshire, have lodged an appeal against the rejection of its challenge to that council's critical threshold.

 

The High Court accepted West Berkshire Council's argument that the 2003 Fair Access to Care Services guidance, which was updated in 2010 permits a critical only threshold.

However, Irwin Mitchell will argue that the FACS guidance does not of itself establish the legality of the critical threshold - merely that councils should prioritise critical needs over substantial needs, over moderate, over low.

In its appeal to the Court of Appeal, the firm will restate its argument that a critical only threshold is in breach of section 2 of the Chronically Sick and Disabled Persons Act 1970, which establishes councils' statutory duty to provide community care services where necessary to meet their needs.

 

Drawing on the defining 1997 judgement in R v Gloucestershire County Council, ex parte Barry, which stated that councils could take their resources into account in applying section 2 so long as they treated disabled people reasonably, it will argue that a critical only threshold is unreasonable.

Interestingly, the government looks set to use statute to outlaw the 'critical' threshold - or its equivalent if it does away with FACS - in setting a national minimum threshold for social care through the draft Care and Support Bill issued last week.

 

Irwin Mitchell has welcomed the proposal though will fight on in the knowledge that it will not become law before 2015. It will submit its argument to the Court of Appeal next week and await a response on when any hearing will be held.