Slash and burn

The victory of four disabled residents over Birmingham City Council's cuts to welfare spending should set alarm bells ringing across the public sector.

The austerity budget has exposed local authorities to the potential for a wave of judicial review applications, and, with Mr Justice Walker's decision in W & Others and Birmingham City Council [CO/1765/2011], the stage has been set for a string of serious defeats.

Equality has always been high on the public agenda, but, as pressure mounts for local authorities to cut costs, the case is a reminder of how easily it can be sidelined for more demanding priorities '“ and how troublesome the consequences of this can be.

Handing down his decision at the Royal Courts of Justice on 19 May, Mr Justice Walker declared that both BCC's budget setting and decision to change its eligibility policy were unlawful on the grounds that they did not promote equality under section 49A of the Disability Discrimination Act 1995, while their attempts at consultation were flawed.

The families of the four disabled adults from Birmingham had been told earlier this year by the council that from 1 April 2011 any needs which were not considered 'critical' would no longer be paid for, leaving them concerned that many of their essential care and support needs would be unmet. Walker explained: 'The consultation had not involved any attempt to look at the practical detail of what the move to 'critical only' would entail.'

Walker's words have not come out of the blue. Public bodies were put on notice last summer, when the Equality and Human Rights Commission warned that it would be keeping a close eye on whether cuts were fully compliant with equality legislation. Despite this, more legal challenges seem inevitable.

Quick fix

Local authorities are devising drastic restructures to cope with slashed budgets. With this they are having to make swift decisions on what services to reclassify as outside their duty of care.

But cuts made in haste, without due consideration for their wider implications, will leave councils wide open for court challenges. Although the principle of due regard is embedded into public sector culture, adequate measures could be overlooked during such swift funding cuts. A significant project, such as closing a hospital unit or doing away with entire service departments, could be deemed unlawful because of ill-thought through preparations.

The only way to avoid this is belt and braces '“ if a decision is made to close or relocate a hospital unit, the impact of that decision on the entire hospital and its service users (especially those protected by the Equality Act) must first be taken into account. It is not unlikely that other specialist departments are depending on it to function, and these ramifications must also be anticipated.

The remodelling of the way local authorities provide social services could have a disproportionately high impact on groups that are considered 'protected' by the Equality Act. If that happens, unions and charity groups have already vowed to use the Act and launch a legal challenge.

Outsourcing dangers

Further evidence of the problems in store is illustrated by the fact that a number of local authorities are currently reviewing the potential for outsourcing their entire portfolio of social welfare services to private providers. The whole social welfare operation, from the initial assessment of needs to the provision of care, could effectively be handed over to the private sector.

Streamlining any organisation takes time and costs money. Add to that the significant cultural changes which are required to foster a new way of thinking and operating in a private sector mould and this will equate to more time required to adjust. Time is the one thing local authorities haven't got. Outsourcing the responsibility for a wide range of social care services to organisations which have already made the necessary investments in training, technology and infrastructure could deliver the necessary cuts without doing away with essential services.

The key for local authorities should be that they put in place safeguards to ensure that they still satisfy their duty of care to the public if they choose to outsource key services or departments. If corners are cut in the implementation and due regard is not paid to equality issues, errors may result and could mean that savings achieved are then simply eroded by legal fees from the ensuing challenges made by service users.