W, R (on the application of) v Birmingham City Council

B e f o r e :

THE HONOURABLE MR JUSTICE WALKER ____________________

____________________

Mr Ian Wise QC, Mr Stephen Broach and Mr Ben Silverstone for the Claimant W (instructed by Irwin Mitchell LLP) and for the Claimants M, G and H (instructed by Public Law Solicitors) Mr Andrew Arden QC, Mr Christopher Baker and Mr Sam Madge-Wyld (instructed by Birmingham City Council Legal Services) for the Defendant Hearing dates: 14, 15, 18, 20 April 2011 ____________________

HTML VERSION OF JUDGMENT ____________________

Crown Copyright ©

Mr Justice Walker:

This case concerns the provision made for those with disabilities in the current budget of Birmingham City Council ("the Council"). The current financial year began on 1 April 2011, that is just over a month and a half ago. Two urgent applications for permission to apply for judicial review were lodged on 25 February 2011. Claim number CO/1765/2011 is brought by a disabled woman whom I shall call "W". Claim number CO/1772/2011 is brought by three other disabled residents of Birmingham whom I shall refer to as "M", "G" and "H". The two claims are identical in substance and directions in both were given by Beatson J on 2 March 2011. He directed a "rolled up" hearing in which the applications for permission and the substantive claims would be dealt with at the same time. He also made an anonymity order in respect of each of the claimants.

The rolled up hearing took place before me in Birmingham from 14 to 18 April 2011. Mr Ian Wise QC and Mr Stephen Broach, who appeared on behalf of the claimants, identified three grounds of challenge to the provision made by the Council when taking decisions to adopt (a) its Business Plan on 1 March 2011 and (b) its Adult Social Care policy on 14 March 2011. Those decisions involved a change in the eligibility criteria which determined, in relation to a particular need or needs, whether the Council would provide specific support to meet the need or needs in question. National guidance provided for needs to be assessed so as to place them into one of four bands of increasing severity – low, moderate, substantial or critical. Prior to 2011/12 the Council had provided support to meet those needs which were assessed to be either substantial or critical. The decisions under challenge approved a prospective change under which individual budgets would be funded only to meet those needs which were assessed to be critical. This prospective change was said to be unlawful as a result of:

Mr Andrew Arden QC, Mr Christopher Baker and Mr Sam Madge-Wyld appeared on behalf of the Council. They submitted that this is "a micro challenge to a macro decision". Thus the starting point for the Council's answer to the challenge is that the proposed change is a matter of high policy, while the complaints about it turn on matters that largely concerned "petty bureaucracy, at quite a low level."

Some features of the history of the claim

The lawfulness of the Council's approach to the provision it makes for the disabled is of acute importance not only to those residents of Birmingham who are disabled but to others as well. The hearing has rightly been treated as urgent, and has come on with great speed. The parties have had to take account of events occurring as they prepared for the hearing. Indeed the decisions now under challenge had not been taken when the claim began. Witness statements were prepared, other material was assembled, and skeleton arguments were lodged, all under considerable pressure of time. Counsel on each side provided the court with speaking notes, and Mr Wise provided a further note on 16 April 2011. These notes were of great assistance in enabling me to assimilate evidence and argument at speed, and I have drawn heavily upon them in the preparation of this judgment.

Permission to apply for judicial review

The case is now substantially different from its original form. In its current form it raises issues which merit careful examination. Accordingly I grant permission to challenge the decisions of 1 and 14 March 2011 identified above on the grounds set out in the claimants' speaking note and the further note of 16 April 2011.

The Claimants

The claimants are all severely disabled adult residents of Birmingham who bring these applications by litigation friends. Each has what Mr Wise describes as "a constellation of difficulties arising from disabilities." As recipients of adult social care services from the Council they all have a direct interest in the decisions challenged.

W is 65 years old and has learning disabilities and mental health needs. She lives in a residential home where she receives a package of care funded by the Council. A care plan prepared by the Council for W identifies many areas of daily living where she is at risk.

M is 25 years old and has a severe learning disability as a result of a genetic disorder. M currently attends college, but is due to finish in July 2011 and so will shortly need day centre provision or equivalent daytime activities. At present the only social care service M is receiving is residential respite care. The Council prepared an assessment of M in March 2008. This records his needs as being 'critical' in the area of "Autonomy and Freedom of Choice", but 'substantial' in the areas of "Health and Safety", "Managing Personal and Daily Routines" and "Family and Social Involvement". His mother states that it is not at all clear that M will be eligible for support under the Council's changed policy, and that if he were to be ineligible for day services the pressure on her would be enormous. Her witness statement describes how M follows her around at home all the time, using repetitive language. M needs constant supervision because he does not protect himself from dangers. He cannot go to the toilet on his own. There are also behaviour problems which will be exacerbated without any daytime service. It seems highly unlikely that there is an alternative resource in the community that could meet M's needs, particularly without any local authority funding.

G is 36 years old. She is not able to take care of her own personal needs and cannot protect herself from risk. She lives at home with her mother and father who are in their 60s and now think that it is time for their daughter to move into residential care. An amended assessment dated 26 April 2010 identified needs assessed as critical, substantial and moderate. Her epilepsy at night results in her needs in that regard being assessed as critical. By contrast she is assessed as having "substantial" needs in relation to her health and safety and managing personal and daily routines. These "substantial" needs relate in particular to her risk of harm to herself and others and inability to carry out the majority of her personal care or domestic routines. Her parents are concerned that support to guard against these risks will not be provided under the new regime and that the consequences of this for G's future care package are unclear.

H is 29 years old. He has a severe learning disability, autism, is profoundly deaf and has scoliosis of the spine. H has a wide range of complex needs and can present with challenging behaviour including smearing and eating his own faeces. H lives at home with his parents, an arrangement which depends upon the Council providing 92 nights of respite care annually. He has been assessed as having a mixture of 'critical' and 'substantial' needs, including 'substantial' needs relating to his requirement for daytime provision. H receives day care from an organisation known as SENSE 5 days a week. It is said to be particularly unlikely in H's case that there would be any alternative provision available for him in the community as he used to attend a day centre but there was an incident where he harmed another service user, and he has not attended a day centre since. He has been assessed as needing a staffing ratio of 2:1 to go out into the community. It is said that such a staffing level is only a realistic possibility if support remains funded by the Council.

State Provision for the Disabled

Support for the disabled during the period to 2007

The modern system for supporting disabled adults began at around the same time as the introduction of the National Health Service ("NHS"). The National Assistance Act 1948 created a duty to provide residential accommodation (s 21) and a duty to provide welfare services (s 29). The Chronically Sick and Disabled Persons Act 1970 ("CSDPA") provided greater specificity to the duties placed on local authorities to provide for disabled adults. The National Health Service and Community Care Act 1990 ("NHSCCA") introduced the concept of care in the community.

The legislation and guidance applicable in 2007 was described by HHJ Mackie QC in R (Chavda) v Harrow LBC [2007] EWHC 3064 (Admin) . I have drawn on paras 3 to 8, 32 and 33 in order to give the account which follows.

The basic legal framework for community care services is as follows. Section 47(1) of NHSCCA 1990 states:

The full list of statutory provisions under which community care services are provided is contained in section 46(3) NHSCCA.. This list includes Part III of the National Assistance Act 1948, containing among other provisions s 29. It is primarily in the exercise of functions under s 29 that the Council's duties to the claimants arise: see s 2(1) CSDPA, which provides:

When carrying out assessments of need and making service provision decisions local authorities have a duty to act under national guidance. The guidance applicable in 2007 was Fair Access to Care Services (" FACS "), issued by the Secretary of State for Health under section 7(1) of the Local Authority Social Services Act 1970 ("LASSA 1970"). As I shall explain, new guidance was issued in February 2010. However the new guidance cross-refers to FACS , and states that the original principles of FACS "hold firm." I shall accordingly use the present tense when describing FACS .

FACS notes at paragraph 14 that in general, councils may provide community care services to individual adults with needs arising from physical, sensory, learning or cognitive disabilities and impairments, or from mental health difficulties. At paragraph 15 it states that councils should use the FACS eligibility framework in order to specify eligibility criteria. Paragraph 16 explains that the eligibility framework is graded into the four bands mentioned earlier in this judgment (low, moderate, substantial or critical), and gives more detail of the criteria for each band. Although all local authorities are required to apply the criteria for assessing "presenting needs", FACS describes how different local authorities might reach different conclusions as to what band of needs will attract services as "eligible" needs.

FACS explains in paragraph 16 that, for the purposes of the eligibility framework, a person's needs are "critical" when 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.

FACS similarly explains that a person's needs are "substantial" when 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; and/or involvement in many aspects of work, education or learning cannot or will not be sustained; and/or 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.

In setting eligibility criteria councils have to take account of their resources, local expectations and local costs. FACS explains that councils should take account of agreements with the NHS and other agencies (paragraph 18) and consult users, carers and others (paragraph 20). Paragraph 12 of FACS has a specific reference to human rights and discrimination law, noting that when drawing up eligibility criteria for adult social care, councils should have regard to the Sex Discrimination Act 1975, the Disability Discrimination Act 1995, the Human Rights Act 1998, and the Race Relations (Amendment) Act 2000. Paragraphs 28 to 41 of FACS set out, with reference to other publications, general but detailed principles of assessment. Paragraphs 42 to 46 outline how eligibility for an individual should be determined following assessment.

A crucial statutory provision in the present case is Section 49A of the Disability Discrimination Act 1995. In 2007 it provided:-

The Disability Rights Commission ("DRC") has produced a statutory code of practice "The Duty to Promote Disability Equality" which must be taken into account by public authorities and the courts but does not have the force of law. The foreword to the Code explains that the imposition of the duty should end the discrimination which currently can occur when institutions fail to take into account the impact upon disabled people when developing services or policies. Paragraph 1.10 emphasises that equality for disabled people may mean treating them more favourably and paragraph 1.13 requires public authorities to adopt a proactive approach. Paragraph 2.34 considers "due regard" and its meaning, explaining that it requires public authorities to do more than simply give consideration to disability equality. The Code encourages a full impact assessment. Once an impact assessment has been carried out public authorities will need to consider changes to reflect its findings.

I add to the above account that FACS provided at paragraph 43 that "once eligible needs are identified, councils should meet them". It is common ground that an authority's resources are important when determining which bands of needs will be met but once a need is identified which falls within those bands then resource considerations cannot be a reason for declining to provide support to meet those needs: see R v Gloucestershire CC ex parte Mahfood (1995) 1 CCLR 7, confirmed by the House of Lords in the same case, by then reported as R v Gloucestershire CC ex parte Barry [1997] AC 585.

It is also common ground that it is unlawful to withdraw services following a change to an authority's eligibility criteria without a re-assessment, see Mahfood at (1995) 1 CCLR 16.

The position between 2007 and early 2010

Developments during the period between 2007 and early 2010 were described in new guidance which superseded FACS . The new guidance was published in February 2010 as "Prioritising need in the context of Putting People First : A whole system approach to eligibility for social care." I shall refer to it as Prioritising Need. Paragraph 3 explained:

Paras 4 and 5 added:

A parallel development was described in paras 12 and 13:

February 2010 onwards: Prioritising Need

As noted above, FACS was superseded by Prioritising Need in February 2010. It built on the reform programme set out in Putting People First - promoting personalised support through the ability to exercise choice. Prioritising Need began with an executive summary including:

At the same time Prioritising Need stressed that "despite significant developments in social care policy since 2003, … the original principles guiding the FACS framework still very much hold firm" (para 1). This was particularly so in relation to the principle that there should be one single process to determine eligibility for social care support, based on risks to independence over time. The concepts of 'presenting' and 'eligible' needs were retained (para 47), as were the four bands of the eligibility framework.

A section on 'Investing in prevention and well-being' included:

...ensuring that people feel supported, included and able to participate in the community in which they live. It might include activities to address social inclusion such as luncheon clubs or befriending; healthy living advice and support; employment advice and support; physical recreation and leisure pursuits; community safety; housing support and transport.

Only a minority of these universal services will be funded through social care and...councils might therefore wish to consider investment in voluntary and community organisations which can deliver universal and open-access services.

... Promoting access to employment can be a highly effective way of improving social inclusion for disabled people. Councils should seek to ensure that disabled people can access high quality support and advice about employment which is appropriate to their needs.

Councils should be mindful of the important role of social care services for disabled and older people in helping carers maintain their own health and wellbeing. For example, Councils should ensure that the family is signposted to advice about flexible working, any support services available in the area and benefits advice about in-work financial support. ..."

Under the heading 'Response to first contact and assessment' the guidance included:

A subsequent section entitled 'Assisting individuals not eligible for social care support' included:

A section entitled 'Personalisation and support planning' introduced "person-centred planning", noting at the outset that where an individual is eligible for help the council should work with that individual to develop a plan for their care and support. The section then built on Putting People First which envisaged "the availability of personal budgets for everyone eligible for publicly funded social care support." At para 128 reference was made to the fact that many councils had begun to explore the use of a resource allocation system ("RAS") as a way of determining how much money a person should get in a personal budget to meet their needs. At para 129 the guidance said that "the aim of the RAS should be to provide a transparent system for the allocation of resources…".

Under the Equality Act 2010 a unified and extended public sector duty has replaced s 49A of the Disability Discrimination Act 1995. The relevant provisions, however, were not in force at the time of events giving rise to these proceedings. By or under the 2010 Act amendments were made to s 49A with effect from 1 October 2010. Neither side placed any reliance on them in oral argument and I need not set them out here.

The Council's "Transformation" proposals

Mr Peter Hay is the Strategic Director of the Council's Adults & Communities Directorate ("the A&C Directorate"). He explained that during 2006 the Council undertook work with the London School of Economics ("LSE") which identified that the Council's then current policies were not financially sustainable.

In April 2007 the Council established a Transformation Programme for the A&C Directorate. In certain respects this programme mirrored or anticipated the approach taken by central government described above. A " Revised Full Business Case for the Transformation Programme " (" RFBC ") was issued on 20 May 2009. It identified three drivers for change: citizens' desire for independence and dignity; staff wanting to share the aims and objectives of the Putting People First agenda; and demographics, in particular the ageing population.

RFBC presented 3 options:

The recommendation in RFBC carried forward the "personalisation agenda". What was described as the transformed Service Delivery Model would introduce a number of features, described in this way at para 1.2:

The identification of citizen vulnerability and assistance through predictive modelling;

The capability of self care through a web enabled access;

Initial support through a telephony based service;

A level of brokered support;

A specialist team supporting those citizens with high needs and high risk; and

The presumption is that self directed care is available at every level.

Section 1.3 of RFBC explained:

Use greater choice and personalisation of services to drive out the inefficiency that is inbuilt within some of our current models of care. For example, current day care carries high fixed costs for very inflexible services;

Use self assessment and greater information about services to influence the way that the citizen spends their own money on social care. It is probable the market will gravitate to high cost/revenue provision like residential care. We will need to open other choices for self funders that in turn widen access to more services for all;

Develop approaches to using information intelligently to make proactive offers to citizens. For example using customer insight we can identify citizens who are providing informal care for their relatives and ensure that they are aware of the range of support services available. We want to start to be proactive rather than a service that is reactive to people at points of crisis;

Have to ensure that enablement approaches are used to reduce the costs that the individual or the city is paying for care by maximising the ability of the citizen to care for themselves. This can be achieved by initiatives such as making greater use of enablement in home care to improve functioning at home. Our use of intermediate care in the new care centres needs to show evidence of improved functioning for citizens and a reduced demand for high cost care; and

Have to encourage a more proactive approach to assistive technology so that we can improve the support to people at home and provide the reassurance to their carer. For example, citizens using new technology at home can adapt these systems to increase the care support available to them and to include vital monitoring data for health and social care needs.

RFBC thus fostered an approach which made use of RASs (as later described in Prioritising Need) and individual budgets (also later described in Prioritising Need ).

One of the options considered at this stage was confining eligibility to critical needs only. This was rejected, it being thought that there would be funding for an increase over time in A&C Directorate spending of £6m year-on-year, so that by 2017-18 the additional funding would be £60m. The calculation made by the Council was that without "transformation", cost of care would increase during the period to 2018 by £290m. By contrast, with "transformation" it was thought that savings of £230m would be made. That left an increase in the cost of care over the period in an amount of £60m, matching the expected increase in funding.

In July 2009 an initial assessment of the impact of the proposed change to adult social care was put in hand. This took the form of an Equality Impact Needs Assessment ("EINA"). It is convenient at this point to turn to the Council's policy in relation to such assessments.

The Council's policy on EINAs

In December 2009 the Council produced a revised ' Corporate EINA Guidance Manual ' ("the EINA Manual "). It was of general application, including but not limited to social care, and related to the range of equality duties found in the Disability Discrimination Act, Sex Discrimination Act and Race Relations Act. It described a process involving 2 stages.

Stage 1 concerned initial screening. Observations about it in the manual included:

bring together all relevant information and "identify gaps" in the information available which already exists … [and] identify gaps in the information you have …

Questions were identified which needed to be answered at Stage 1. If the answers indicated that there were aspects of a proposed policy that might "contribute to inequality" or have a negative impact on particular communities, or that particular communities or groups were likely to have different needs, experiences or attitudes towards the policy, then it would be necessary to proceed to a full EINA.

The full EINA was Stage 2. It involved a 9 step process. Step 1 was a scoping exercise. Step 2 was involvement & consultation, while step 3 concerned data collection and evidence. Step 4 was entitled "Assessing impact and strengthening the policy." The task here was to determine if the relevant policy or function had a potential adverse or differential impact on, or failed to meet the needs of, specific groups or had discriminatory outcomes. A "differential impact" was defined as arising where different outcomes for one or more community, customer or employee group compared to another, or where a universal approach taken to the delivery of a service or function resulted in some people being affected differently. Step 4 added that an important part of the assessment was to consider whether there were ways of mitigating adverse impact, defined as either lessening the impact or providing some other remedy if it is not possible to reduce it. Examples of potential significant adverse impact were set out, including "eligibility criteria which disadvantages any groups".

Step 5 dealt with procurement and partnerships. Step 6 was entitled "Making a decision." It began with introductory paragraphs noting that the author of an EINA would need to reach a decision, and this decision "may need to be agreed by senior managers and/or Elected Members." It also noted that the author should "consult with your Directorate EINA Contact Officer", before finalising and implementing the action plan. The remainder of Step 6 included the following:

The aims of the policy

The evidence you have collected

The results of your consultations, formal and informal

The relative merits of alternative approaches

Does the assessment show that the proposed policy will have an adverse impact on a particular equality group or groups?

Is the proposal likely to make it difficult to promote equal opportunities or good relations between different racial groups?

Step 7 concerned the identification of arrangements for monitoring, evaluating, reviewing.

Step 8 concerned action planning and Step 9 concerned sign-off. Step 8 needs to be set out in full:

Specific

Measurable

Attainable

Realistic

Tangible

Involvement and Consultation

Data Collection and Evidence

Assessment and Analysis

Procurement and Partnership

Monitoring, Evaluation and Reviewing

Developments in the period to autumn 2010

Mr Paul Dransfield is the Council's Chief Financial Officer and Strategic Director of Corporate Resources. He explained, among other things, that by autumn 2009 it was apparent that, following the expected general election in May 2010, any new government would make very significant expenditure savings from 2011 onwards. A number of developments led to further changes in expectations as to resources for this period. A major role in the consideration of these developments was played by the Council's Corporate Management Team ("CMT") comprising leading officers, and its Executive Management Team ("EMT") comprising Cabinet Members, representatives of Scrutiny Committee Chairs, and the CMT. At a meeting of the EMT in January 2010 estimates of the scale of the spending reduction were set out for Council members so that they could endorse some early preparation for the 2011/12 budget. Various "work streams" were commissioned to seek to cut administration costs and improve efficiency.

Mr Hay records that a business plan prepared in February 2010 suggested a total of £57.9m reductions for the authority as a whole.

The general election took place in May 2010 and in June 2010 the new coalition government produced an emergency budget. Two EMT "Awaydays" were held in June 2010. By then officers were "confidently predicting" that the Council would face a reduction in grant of approx £330m p.a. over the next 3 to 4 years. By contrast, Mr Dransfield explained, the best that the work streams could produce amounted to a total of £90m p.a. of savings over the same period. Consistently with the Council's Sustainable Community Strategy, the Council had developed policy priorities in which equalities considerations had played an important part. At the head of these priorities was "protecting vulnerable people (children and adults)".

Mr Dransfield's first witness statement explained the outcome of the June meetings at paragraphs 49 to 52:

Mr Hay explained that the A&C Directorate held a strategic planning day in July 2010, when it was thought that the funding gap for the A&C Directorate would be £43m for 2011/12 and £90m by 2014/15. On 4 August 2010 the Council's Chief Executive set saving targets for all directorates; as regards the A&C Directorate the savings targets were £36.9m for 2011/12 rising to £87.8m by 2013/14. At a meeting on 13 September 2010 it was made clear that there could be no exemption for adult care from reductions in budgets. However, in recognition of the need to invest in meeting the costs of demographic pressures there would be an increase each year of £6.466m in the base budget for the A&C Directorate against which the scale of necessary reductions would be assessed.

The government's Comprehensive Spending Review was announced on 20 October 2010. On the same day the Department of Health announced an additional £1bn to be provided to councils to support social care and up to £1bn to the NHS to support social care. When revenue grants from all departments were included the overall reduction in revenue funding to local authorities would be 26%.

Proposals for two consultations were taken forward in late 2010 and early 2011. They concerned the Council's arrangements for Adult Social Care and the Council's Business Plan (i.e. its budget).

On 8 November 2010 the Council at a meeting of Cabinet approved a consultation on allocation of resources to individual A&C Directorate service users and the introduction of a Universal RAS. A public report for the meeting explained that the Universal RAS proposed to treat all service users the same regardless of client group (e.g. learning disability or physical disability). It was proposed to introduce this new system on 1 April 2011. The new system was said to be key to the management of demographic pressures on the A&C Directorate budget in future years. It would also better meet the needs of citizens and improve outcomes. Papers before the Cabinet included, at Appendix 1, an "Initial Screening Pro Forma for Equality Impact Assessment." It was explained in para 3.3 of the public report that a key aim of the proposed consultation was to gather evidence from a wide audience of stakeholders to allow for the EINA to be refined. Appendix 1 identified a number of questions and answers. Question 11 was. "Are there any criteria/requirements or aspects of this policy that could contribute to inequality?" The answer given was "No." This was followed by an explanation of what the Transformation programme would do, the development/design of specific delivery for each service, and the timing of equality impact assessment "checkpoints." The Council's proposals at this stage did not include a change to limit eligibility to critical needs only.

Very shortly afterwards the Cabinet was advised of a range of further proposals to be considered at EMT "Awaydays" on 18 and 19 November 2010. These proposals included the ending of provision for needs assessed as "substantial" with funding being restricted to only those needs which were assessed as "critical". At the "Awaydays" the EMT had a report dealing with the impact of this and other cuts in services. It was prepared by Mr Mashuq Ally, Assistant Director, Equalities and Human Resources, and was stated to be relevant for all Cabinet members. Relevant parts of the report included the following:

Increased reliance on families/informal carers to meet basic needs around personal care and hygiene along with domestic tasks such as cleaning and shopping with consequent increased stress for both carer and recipient of care

Where no or inadequate family/informal support is available then basic needs are likely to go unmet leading to neglect and potential for needs to escalate to critical level

Increased isolation and loneliness of those with substantial needs potentially leading to increased depression and mental illness

Increase in safeguarding issues as risk of abuse increases over time, leading to potential for needs to escalate to critical level.

On 30 November 2010 the Council published a consultation document on its Business Plan 2011/12 – 2014/15 ("the November Business Plan Consultation"). A section on responding to the consultation said:

A foreword from the Chief Executive stated that the Council anticipated needing to make a total of £300 million in savings over the next four years. Section 2 of the paper was entitled "Birmingham's budget." It noted that the Council spent around £3,550 million per year of which £380m was on adults and communities. It added:

Section 3 of the November Business Plan Consultation was entitled 'Our approach to delivering the required savings'. It noted that the Council Plan 2010 had set out the Council's 'immediate priorities', the first of which was 'Protecting vulnerable people (children and adults)'. It explained in detail how seven principles had informed the approach to delivering the required savings. These principles were:

Section 4 was entitled 'Draft proposals' for service areas. Before turning to specific service areas it stated (among other things):

Under the heading "Adults and Communities" the November Business Plan Consultation described a "new offer":

Adding that the "new offer" was "based on the new landscape", the November Business Plan Consultation continued, by reference to a diagram, as follows:

Before setting out a summary of the position in relation to "Adults and Communities", the remainder of this section was as follows:

A table headed "Summary of proposed savings" listed 6 heads under which the A&C Directorate would achieve savings totalling £106.9m by 2014/15. The first of these heads, proposed to save £33.2m in 2011/12 and £69.1m by 2014/15, was described in this way:

On 2 December 2010 the Council launched its consultation document on the future of adult social care ("the December ASC Consultation"). The consultation period was to finish on 2 March 2011. An opening section stated under the heading "Additional information" that the document was "part of a wider consultation by [the Council] on its Council Business Plan 2011/12-2014/15" launched on 30 November 2010. Under the heading "Adult social care services now and in the future" it explained perceived advantages of "personalisation." Under the heading "Background information about reductions in funding" it estimated that by 2014/15 adult social care funding in Birmingham would need to make savings of approximately £107m.

Section 2 dealt with the proposal to move to a universal RAS. Under the heading "The way we assess people's needs" it included the following:

Section 3 was entitled "Delivering adult social care services with reduced funding." It stated:

Quality of Life: We exist to ensure the quality of life of all citizens –today, tomorrow and always.

Health: We exist to assure the health of our citizens through a single approach to health and care and to meet the strategic ambitions of a world class city.

Information, advice and signposting available to everyone, fostering strong and supportive communities that value the contribution that each of their citizens can make;

Preventative and enablement services –to keep people as independent as possible for as long as possible;

Individual budgets for people whose personal care needs are critical*, based on a Universal Resource Allocation System, and subject to financial assessment; and

Closer working with Health to keep people out of care and help them stay independent in their own home.

Sections 4 and 5 respectively provided information on how to take part in the consultation and a glossary. Included in Section 5 was Table 1, setting out a breakdown of what the Council proposed for the A&C Directorate's budget from 2011-12 to 2014-15. This listed six heads similar to those in the summary table set out in the November Business Plan Consultation. The first head repeated the figures of £33.214m saving in 2011-12 and £69.101m saving by 2014-15, against an entry in these terms:

The Council's evidence was that its overall approach for the A&C Directorate was to take forward the transformation programme, increasing the emphasis on prevention, enablement and signposting, in substitution for the provision of a personal budget where possible. The aim was to combat the phenomenon that fewer and fewer people were being assisted at a greater and greater cost. As explained by Mr Hay at paras 36 to 39 of his first witness statement:

Mr Charles Ashton-Gray joined the A&C Directorate in 2004, and became Strategic Performance & Engagement Manager in the Directorate in the summer of 2010. In a witness statement he said that the December ASC consultation necessarily struck a balance between clarity and conciseness: "too much information can confuse." Overall, he considered it was clear what was being proposed, and why, and what issues consultees were being asked about. His witness statement continued:

December 2010 and January 2011

Mr Ashton-Gray records that as regards adult social care approximately 1,700 people attended briefing sessions and 841 people completed questionnaires. Representatives of the Council attended a number of meetings in this regard. One such meeting took place on 6 December 2010, a carers forum organised by the Birmingham Carers Association. It was attended by a number of representatives of the Council. A note of the meeting records that the Chair of the Birmingham Carers Association told the Council representatives that carers were anxious to know what the "critical" category covered, and asked, "What do you term as critical?" The response was that Mr Hay would be issuing guidelines on what "critical" meant, and the Council would let the Association know when this was available.

At a number of public meetings in January 2011 a Powerpoint presentation was made by the Council. It included a slide which showed the Council's "best guess" as being that in 2011/12 they would receive £6.0 million in the form of "Share of Enablement funding (NHS money)", and £15.4 million described as "Funding from NHS to support social care services for the benefit of health" in 2011/12, a total of £21.4 million. The slides gave an account of savings proposals divided into three sections:

(1) Section (1) identified a first head of savings which, as with the first of the previous six heads in the November Business Plan Consultation and the December ASC Consultation, would achieve savings in 2011/12 of £33.2 million and savings by 2014/15 of £69.1 million. The description of this head was as follows:

(2) Section (2) identified two more of the previous six heads listed in the November Business Plan Consultation and the December ASC Consultation. These two heads, when combined, would achieve savings of £2.1 million in 2011/12 and £25.9 million by 2014/15.

(3) Section (3) set out the remaining three of the previous six heads, making up the balance of the £40.5 million of savings previously identified for 2011/12 and £106.9 million previously identified as to be achieved by 2014/15. However section (3) also set out a seventh head, described as "Reduction in grants rolled into overall allocation." This seventh head would achieve savings in 2011/12 of £2.4 million, and savings by 2014/15 of £6.3 million. Thus the overall total of savings envisaged in the slides presented in January 2011 was a sum of £42.9 million in 2011/12 and £113.2 million by 2014/15.

In mid January 2011 there was correspondence between Public Law Solicitors (who act for M, G and H) and the Council. Among other things, in that correspondence Public Law Solicitors challenged the proposed move to "personal care critical only".

February 2011

In February 2011 the Council received a consultation response from Sense, a national charity that supports and campaigns for children and adults who are "deafblind" and provides council-funded services. The consultation response explained "deafblindness" as a combination of both sight and hearing difficulties, and that Sense provides expert advice and information as well as specialist services to deafblind people, their families, carers and the professionals who work with them. It also explained that Sense supports people who have sensory impairments with additional disabilities. After noting that the most common cause of deafblindness is older age, the Sense consultation response turned to the Council's proposal that there should be a funded service for only those of low means whose personal care needs were critical. It was apparent from the response that Sense interpreted this to have two different elements. The first element which Sense identified was that the Council proposed to support personal care only. Among other objections to this first element, Sense pointed out that it was not in line with statutory guidance. Prioritising Need stated expressly that needs relating to social inclusion and participation should be seen as just as important as needs relating to personal care issues, where the need fell within the same band. Sense added that failure to meet critical needs not related to personal care might also be in conflict with human rights law.

The consultation response from Sense dealt separately with what was understood to be a second element of the Council's proposals, "Move from critical and substantial to critical only". In this regard Sense commented:

Sense was not alone in thinking that the Council proposed to support personal care only. On that question, Mr Ashton-Gray's statement said at paragraph 12:

The document Mr Ashton-Gray refers to in paragraph 12 of his statement comprises eight pages and is entitled Fair Access to Care Services Birmingham's proposed eligibility criteria for social care funding from April 2011. I shall refer to it as "The February Eligibility Criteria". Under the heading "Criteria for accessing social care funding", the February Eligibility Criteria noted the four bands identified in national guidance. It continued:

Under the heading "Maximising independence through enablement" the February Eligibility Criteria set out six aims:

Life is, or will be, threatened and/or;

Significant health problems have developed or will develop and/or

Abuse or neglect has occurred or will occur…

Physical

Sexual

Psychological or emotional

Financial or material

Neglect or omission

Discrimination

There is, or will be, little or no choice and control over vital aspects of the immediate environment…

There is, or will be, an inability to carry out vital personal care or domestic routines…

Vital involvement in work, volunteering, education or learning cannot or will not be sustained…

These vital relationships or support systems cannot or will not be sustained without this support…

They or the person they care for is eligible for support from Birmingham City Council Adults and Communities directorate…

In the remainder of paragraph 12 of his witness statement Mr Ashton-Gray made some further comments about this document:

Publication of the proposed Business Plan

The Council's business plan, including its 2011/2012 budget, was due to be decided upon at a meeting of the full Council on 1 March 2011. The proposed business plan was set out in a document entitled "Council Business Plan 2011+." I shall refer to it as " Business Plan 2011+". It began with a message from the Leader of the Council which stated that the Council must reduce its annual expenditure by over £300m within the next three to four years.

Part 2 (Strategic Outcomes) reiterated the Council's immediate priorities, the first of which was "Protecting vulnerable people (children and adults)".

Part 4 of Business Plan 2011+ dealt with feedback from the November Business Plan Consultation. It said that adult care services were the subject of a detailed consultation process alongside the November Business Plan Consultation. In that regard it noted, among other things, that '[m]any respondents felt that more details of the impact of the proposals would be required in order for them to reach a conclusion'. Returning to the business plan generally, Part 4 identified three areas where Birmingham residents wanted to 'protect investment and avoid spending reductions as far as possible'. One of these was 'social services for the elderly'.

Part 9 of Business Plan 2011+ dealt with Risk Management, identifying a number of risks that could potentially have "an adverse impact on the council in the delivery of its planned outcomes and priorities". The second risk identified was '[f]ailure to meet the need to adequately protect and support the most vulnerable adults'. The likelihood of this was said to be 'Medium' (i.e. a 20-50% chance) and the seriousness of the nature of the risk was said to fall into the top banding of 'High' (i.e. a critical impact on the achievement of the Council's objectives). Mitigation of this risk was proposed to be achieved by the delivery of the new operating model for adult services detailed in Appendix 1.

Part 10 of Business Plan 2011+ dealt with Equalities. It stated:

Progress to date in equality impact assessing the overall budget strategy;

The equality-related commitments already made through decisions and proposals.

Protecting as far as possible funding that is providing services to vulnerable children;

Targeting the use of the new NHS money channelled through Councils for adult care services on support for these groups;

Re-configuring children and adults services to focus on the prevention of serious problems;

Re-configuring personal care services to better meet people's individual needs;

Understanding the implications of increased fees and charges and refining our corporate policy in this area;

Making sure that where practical any changes to the way citizens access services do not disproportionately affect vulnerable groups and communities;

Understanding, monitoring and mitigating staffing implications where possible by using voluntary means such as the recent council wide voluntary redundancy trawl;

Reducing the council's support services budgets by proportionately more to protect front line services;

Working in partnership with other partners such as the NHS to deliver shared services;

Continuing to consult with residents, the business and voluntary sectors and equality groups both on the generalities of the spending reductions we face as well as on specific issues and service re-designs.

Appendix 1A to Business Plan 2011+ was entitled "Adults & Communities." Under the heading "Service Proposals" it repeated much of what had been said about "option 2" in section 3 of the December ASC Consultation. Among other things, it repeated the statement that the proposed offer would provide individual budgets "for people whose personal care needs are critical" – in this regard using the original terminology rather than the explanation given in the February Eligibility Criteria.

Appendix 2E to Business Plan 2011+ comprised a table of "Portfolio and Committee Savings." The savings for the "Adults and Communities Portfolio" were broken down into fourteen categories leading to total savings in 2011/12 of £51.034 million, and for the period to 2014/15 of £118.215 million. Thus by the time Appendix 2E had been prepared additional savings of £8.134 million in 2011/12 had been identified which, after taking account of other changes, would lead to an overall increase in savings of £5.015 million during the period to 2014/15.

The first category of savings for the Adults and Communities Portfolio in Appendix 2E was proposed to give rise to savings of £17.534 million in 2011/12, leading to overall savings of £53.421 million in 2014/15. This category was described as follows:

Further responses to the December ASC Consultation

The letter dated 17 th December (UR01/60250217);

The document Budget Consultation January 2011 presentation (BCC, January 2011a);

The document Birmingham City Council Business Plan 2011+ (BCC, February 2011a);

The document A Vision for Adult Social Care in Birmingham Easy Read consultation summary , (BCC, January 2011b),

The document A Vision for Adult Social Care in Birmingham Easy Read Consultation Questionnaire , (BCC, January 2011c)

And Fair access to care services Birmingham's proposed eligibility criteria for social care funding from April 2011 (February 2011) (BCC, February 2011c).

Adults with autism often experience high levels of anxiety and stress which mean that the more anxious the individual with autism, the 'less likely they were able to cope' with 'change, anticipation, sensory stimuli and unpleasant events' (Gillett et al, 2007). Thus it is vital that the reformed assessment captures the fluctuation in an individual's anxiety which will affect their ability to cope with their personal care, plan for meal arrangements and mobility.

The February supplementary information

Understanding the impacts of fees and charges and the impact of those on vulnerable groups, taking steps to mitigate such impact;

Continuation of support to those with learning difficulties and mental health problems;

Ensuring that where possible changes to citizens access to services e.g. self service, do not disproportionately affect vulnerable groups;

Making sure we have a fuller understanding of the implications of rationalisation of council facilities and the reduction or removal of subsidies in certain areas. Careful consideration of the accessibility of facilities both in a geographic sense and a personal finance sense;

Understanding, monitoring and mitigating staffing implications where possible by using voluntary means such as the recent council wide voluntary redundancy trawl.

Directorate Service Plans

Directorate Budget savings proposals

Commissioned service EINAS

Service plans for individual teams

Workforce Planning

The Birmingham Compact

Protecting front line services and reducing back office functions

Moving to a commissioning organisation which specifies outcomes for people rather than a one size fits all

Applying seven clear principles to planning

The exact nature of the service redesign is not finalised as the consultation is still ongoing thus the impacts will continue to be picked up through ongoing, individual EINAs on service redesign

The business plan acts as a framework alongside the new corporate planning framework which sets out the cities approach to business planning and its equalities duties

(1) As regards involvement and consultation, the planned action was "Ensure Equalities division are part of any consultation."

(2) As regards data collection, the planned action was: "Ensure all plans and strategies are EINAd."

(3) As regards assessment and analysis the planned action was: "Carry out further screening once consultations complete…"

(4) As regards procurement and partnership, the planned action was "Ensuring commissioned services adhere to equalities."

(5) As regards monitoring, evaluation and reviewing, the planned action was "Review as Part Of Biannual Review."

Meeting of the Council, 1 March 2011

Full consultation had been undertaken since June 2010 with various stake holders and up until today's meeting the Opposition Party had been silent on how they would manage the City Council's budget.

The two main aims of the budget were to protect vulnerable people in the City and provide value for money.

A number of organisations who had not responded subsequently had been requested to provide a business plan but had still not responded or engaged with the Council.

Adult Social care needed radical reform and the consultation on the new social care offer would conclude on Wednesday 2 March 2011.

Individual users of Adult Care Services would not be left without a service but would be sign posted to other help and support through the access service. The service had already achieved major changes, for example, the reduction of elderly persons' homes from 29 to 4. The relationship with the Third Sector had changed from making grants to commissioning services. Central Government had announced a transitional fund to allow charities and social enterprises to compete for Government contracts. Overheads and costs would be removed from previous practice of paying for care homes and day centres. The City was directing money, some from the health service, into prevention measures such as telehealth, preventing falls, recognising dementia and increased respite.

When the current Administration had taken over Adult Services, it had been the worst performer in the country with a considerable overspend. Working with stakeholders and employees the service had been turned around.

Early study of consultation feedback indicated that users of Adult Care Services appreciated what the Council had to do and the proposed changes, with users willing to work with the Council to make the changes successful.

To cut £51 million from the budget of services that met the needs of the most vulnerable was obscene and would hit those in most need the hardest.

Whilst it could not be denied that there were hard budgetary decisions to be made, the Opposition Group felt that the proposed budget was too much too fast. It was believed that care packages would be withdrawn and that the third sector who it was assumed would provide some of the services that the Council would not be providing would also suffer from funding cuts. The Council may end up paying more in the long run as people slipped into critical care because of funding cuts.

It was felt that the proposed lobbying of MPs was too little, too late.

Due to the financial deficit, change was inevitable and needed to be planned for which was what the City Council was doing.

There was a concern that the voluntary sector would not be able to cope with the role that they were being asked to assume in providing services.

The Council's response to BACOP, 10.3.11

The A&C March report

An expectation that Citizens will meet their care needs from their own resources and helped through signposting, advice and information.

The Council working jointly with Health and moving its focus on to a universal offer of prediction and prevention together with enablement to keep people out of the care system.

Funded care services only being provided by the Council for the critical needs of people of low means who have no other way of meeting them.

The first question asked whether individuals agreed or disagreed with the setting of a universal RAS. The overall response was that individuals had a very positive new of this (76% agreeing or strongly agreeing);

The second question asked if individuals agreed or disagreed with the publication of a Citizen Statement. The overall response was that individuals had a very positive view of this (86% agreeing or strongly agreeing);

The third question asked individuals how they might prefer to complete a Self-Assessment Questionnaire. The overall response was that individuals (56%) felt that they would prefer to be visited by a social worker who would support them in completing a Quickheart self-assessment;

The fourth question asked individuals what support they might need in using Quickheart to complete a Self-Assessment Questionnaire. The greatest area of support was thought to be from friends and family, but a significant number did not feel that they required any support, with only a minority seeking web access;

The fifth question asked whether individuals agreed or disagreed with the proposal to use any additional funds new money to create a new service offer by working with people and organisations to develop stronger and more supportive communities which will help to keep people out of care (option 2). The overall response was that individuals had a positive view of this (59% agreeing or strongly agreeing); and

The last four questions asked individuals to rate how important they felt were the four elements of the 'new offer'. The overall response was that individuals had a very positive (82%) view of the elements within the proposal.

Option 1) Use the new money (£39m per year by 2014/15) to ease the reduction of adult social care funding (£107m per year by 2014/15), or in other words carry on but do significantly less

Option 2) Use the new money (£39m) to create a new service offer by working with people and organisations to develop stronger and more supportive communities which will help to keep people out of care.

19% of individuals responding "strongly agreed" and 40% "agreed" with the proposal to support Option 2;

Of the 313 respondents who identified themselves as 'service users', 61% of them supported the proposal

Of the 66 respondents who identified themselves as 'providers', 80% of them supported the proposal

41% of individuals responding felt that information, advice and signposting was "very important" and 34% felt that it was "important" (this question was unanswered by 76 respondents);

56% of individuals responding felt that preventative and enablement services were "very important" and 33% felt that it was "important" (this question was unanswered by 56 respondents);

40% of individuals responding felt that individual budgets for those whose care needs were critical was "very important" and 40% felt that it was "important" (this question was unanswered by 79 respondents);

55% of individuals responding felt that closer working with Health was "very important" and 30% felt that it was "important" (this question was unanswered by 67 respondents).

Gender

Race

Disability

Religion or Belief

Sexual Orientation

Age

Choosing to remain at home when the cost of doing so would exceed the amount the council would expect to pay for the care at home or when the care in a residential establishment can be purchased within the individual budget.

Available background papers

The Cabinet meeting on 14 March 2011

Legal principles as to the application of s 49A

Issues of fact as to the Council's approach

i) I accept that Mr Hay and other senior officers of the A&C Directorate did not intend to restrict the criteria so that only personal care needs would be eligible for support. It was entirely proper for the claimants to draw attention to the numerous occasions both before and after the February Supplementary Information when it was said that the proposal involved a move to restricting eligibility to critical personal care needs. Those references are explicable as mistakes on the part of those preparing material under pressure of time and repetition by others of what had appeared in the mistaken material.

ii) I also accept as regards the November Business Plan Consultation and subsequent material that Mr Hay and other senior officers of the A&C Directorate were working on the basis that the head of savings proposed to amount to £33.2m in 2011/12 should comprise £17.5m from the New Offer (including the move to "critical only") and £15.7m as was eventually explained in late February 2011 when Business Plan 2011+ was published. The claimants are right to say that the evidence in these proceedings does not appear to disclose any earlier occasion on which information about the figures which underlay the £33.2m was made public. However the wording used in previous documents, although it gave no assistance as to how in money terms the £33.2m had been calculated, could be read as consistent with the New Offer being only part of the £33.2m. When the matter was confirmed in a third witness statement of Mr Dransfield on behalf of the Council the claimants, entirely properly, did not seek to challenge the factual position further in this regard.

iii) Turning to the Cabinet meeting of 14 March 2011, I accept that Cabinet was not bound by the decision of 1 March 2011 and could still have decided that more needed to be done and spent. I also accept that if Mr Hay had thought that the expenditure targets were insufficient for the discharge of the Council's statutory duties under s 49A he would have advised Cabinet to recommend to the full Council that further spending resources be allocated to the Directorate (even if they had to come from other budgets or from reserves).

The remaining issues

(1) Move to "critical only": s 49A consideration

i) Mr Hay had achieved distinction in the fields of social care and housing. He is now president of the Association of Directors of Adult Social Services. He and other professionals were trying to cope with a desperately serious international problem – the cost of care for an increasingly ageing population.

ii) There was an air of unreality in saying that the members of the largest local authority in Europe, in the vanguard of equal opportunities over many years, were unaware of the duty imposed by s 49A – it "bordered on the absurd" to say members needed to have that duty pointed out.

iii) Even where final decisions were reserved to Cabinet or the Council itself, members were entitled to rely on the work carried out by Council officers. Decisions did not comprise only that done by the decision taker at a particular time without taking account of the preparatory work. Cabinet and the Council often take important decisions involving vast sums of money and affecting large numbers of people at great speed, and need to do so.

iv) Members are not bound to call for background papers. Where background papers are referred to, members will be aware that they have been relied upon and are part of the material that has led to the report. It is for the member to decide whether or not to ask for it, and the member is entitled to rely on the work done by officers in preparing it.

v) Cabinet is the Council, not a delegate of the Council. The Council is responsible for overview and scrutiny, but is not responsible for policy as to adult social care. That responsibility on the part of Cabinet is one of a large number of functions, the great majority of which included equality duties.

vi) The time frame was set externally, and it was "incredibly short". There was a predictive announcement by central government just before Christmas: this had to be taken into account by the Council for the purpose of a multi-billion pound exercise so that a budget could be made by 1 March 2011 as regards precepts and 11 March 2011 for council tax demands. The grant received from central government was not at large for discretionary spending, the Council had to spend first on tasks that were mandatory: loan charges, staffing, contractual commitments already made – all these had to come out of revenue. It was in that context that the Council agreed that choices could be made. Members were aware that they could have an Extraordinary Meeting in order to divert expenditure from other areas to adult social care.

A further introductory point concerned the approach to be taken by the courts. Here the Council drew an analogy with what had been said by Lord Neuberger - in Holmes-Moorhouse v London Borough of Richmond upon Thames [2009] UKHL 7 - said at [48]:

It was commented that if the court attributes too much significance to slips on a "route that is difficult and fraught" this over-judicialisation would cause a bleed out of sparse welfare funding into litigation. Mistakes inevitably cropped up when people were working under far too much pressure and did not have the money to do things perfectly. This issue was whether the mistake was sufficiently germane to invalidate the exercise.

In general it was submitted that courts should be very wary not to intervene in questions involving the balancing of competing claims, which were matters for expertise, specialist knowledge, local policy and democratic accountability. Lord Millett in Southwark London Borough Council v Mills [2001] 1 AC 1 had said that judges were not equipped to resolve issues of priority in the allocation of resources. In a context where long term strategy considerations, expertise, political and social awareness, and local knowledge all had a part to play, Lord Neuberger had said in R(Ahmad) v Newham London Borough Council [2009] UKHL 14 that it was inapt for the courts to interfere, save in clear and exceptional circumstances.

Turning to the grounds of challenge in the present case, they were concerned with adult social care in Birmingham. That, the Council submitted, brought in local considerations, local knowledge and local choices. Birmingham's choice until 2010 had been to reject a move to "critical only", on the basis of an assumed increase over time in adult social care spending. Both that choice, and the change in the November Budget Plan Consultation had been officer led.

The challenge began life as a claim that Birmingham should increase its Council Tax. Instead, it was now that other areas of activity should be cut instead of Adult Social Care - without any such area specified, any implications (including for the disabled) considered, or any savings quantified. An approach of that kind was to be deprecated - see Ahmad cited earlier.

In relation to the move to "critical only", this had been part of what was described as "Option 2" and became the "New Offer." On this, Mr Hay in his first statement said:

By contrast with the positive approach taken by the Council and its officers, the focus of the claimants' case had been exclusively on the perceived negative effects of the transformation programme.

The Council submitted that it had taken a legitimate policy decision to consult on broad options. It had not purported to be consulting on alternative plans for supporting substantial needs, it did not need to do so, and it was not possible to develop alternative systems for supporting substantial needs without actually engaging with the task of doing so. That was in a context where, although this was not said at the time, Mr Hay's evidence was emphatic that no one with substantial needs would go unheeded or unassisted. It was true that Business Plan 2011+ had identified a "medium risk of serious failure", but this was a risk as to the impact on the Council. No one would lose support until their needs had been assessed against other resources that were available. Part of the exercise was putting pressure on third party contractors to reduce fees: there were good policy reasons why the Council did not want to shout this from the rooftops. Saying, "don't worry, we will provide" would encourage people not to change. By contrast the intention of the Council was to urge the voluntary sector and family and friends to do more.

As to the assertion that consultation responses had not been taken into account, the lengthy debate on 1 March involved extensive discussion of criticisms of the proposed move to "critical only". That needed to be seen in the context of moving towards greater prevention, enablement and signposting. Similarly the Cabinet discussion on 14 March had dealt with concerns raised in consultation in the way in which they had been addressed. The claimants had not identified anything that was available to be said or known which was not said or known; nor had the claimants advanced any solution which could credibly solve the problem confronting the Council. The criticisms were small in number and the errors insignificant. In the context of externally imposed time constraints, the large number of meetings held and large numbers who responded, the process gave rise to criticisms which in number were significantly smaller than might have been expected, and were below any line which would justify vitiating the process as a whole.

Turning to the duty under s 49A, that section did not require the production of an EINA. Nevertheless the Council took that course, and it involved a continuing process, not one under which an individual document was to be specifically considered at a specific time. The Council had never suggested that its duties under s 49A were discharged "inherently" by its adult social care activities. What the Council contended was that decisions taken in relation to adult social care, as with numerous other decisions, were decisions taken which reflected the s 49A duty. Thus "Option 2" had begun with consideration of how to address the needs of the disabled.

The Council's submissions stressed that equality had been a principal theme in the work of the Council in the period up to the decisions of March 2011. By way of example, Mr Hay in his first statement said:

In particular in relation to "due regard", the Council submitted that consideration of impacts relevant to the equalities issue was an element of developing the transformation programme from 2008 onwards. The Council added that its consideration of the options for making savings from the summer of 2010 onwards necessarily involved addressing potential impacts. That process led to the identification of "Option 1" and "Option 2". Mr Hay's evidence was that in identifying those options the Council addressed the implications and impacts of each, how service users' needs would be met and effects ameliorated. Thus it was as part of the process of "due regard" that Business Plan 2011+ summarised consultation responses, was based on priorities and principles of protecting vulnerable people, and of prevention, reducing dependency and personalisation. In the February Supplementary Information the Council was urged to consider the terms of the EINA, in a context drawing attention to the potential impact to disabled people, while noting that reconfiguring personal care and investing in the prevention model would provide some mitigation. The Corporate EINA had referred to the s 49A duty, commenting that equality considerations did not preclude cuts or changes in services but did require that they be "fully understood, both individually and holistically". The A&C March Report had summarised the ASC EINA and referred to it among the background papers. In Appendix 4 information was given about how many service users were either not critical or had no eligibility banding. It was made clear, however, that no one's care would be changed without an assessment and reiterated that withdrawal of support would not occur if not practical or safe. Appendix 8A addressed the context of "personalisation of social care" meaning giving "people the opportunity to have as much independence, choice and control as possible by being in charge of their own care". It outlined the sort of services which allowed people "to remain independent of social care" by way of "advice and information when they first need it or are signposted to other universal or community services where they can get help." Issues were identified in Appendix 8B, including managing the transition to "critical only". In that regard there would be assistance for those with substantial needs to become more independent by the provision of short term enablement services and advice. Impacts and their mitigation were also addressed at the meeting on 14 March 2011 in Mr Hay's presentation.

Accordingly the Council submitted that it had identified and considered throughout the process what alternative courses of action were available and their implications, the nature of the changes being proposed, the nature and extent of the impacts and how those impacts were to be addressed and mitigated. This was more than sufficient in order to give due regard to the matters required under s 49A. The assessment was as rigorous as the circumstances and time permitted: short of individual assessment, there was little if any generalised impact to be considered beyond numbers and the withdrawal of financial support once other resources were in place. In all the circumstances the impact was "inherently obvious". On the question whether members had asked for the full EINA when this was referred to simply as a background paper, the Council submitted that it was entitled to the benefit of the presumption of regularity. In a context where members were entitled to rely upon work done by officers, it was for members to decide how far to go into that work. The fundamental point remained that there was nothing more to be known of a general order until the policy was applied to individuals with their substantial – but different – needs.

To my mind the Council's submissions mischaracterise s 49A. As the agreed propositions demonstrate, the role of the court is to assess whether the Council has complied with its duty to pay "due regard" to the matters identified in that section. Unlike the Ahmad and Mills cases, the claimants' challenge in the present case did not ask the court to decide issues of priority in the allocation of resources.

I readily accept that the court should apply the principles identified by Lord Neuberger in Holmes-Moorehouse . It is not the role of the court to get involved in minute scrutiny of a mass of detail. I accept that consideration by the Council of the proposed move to "critical only" involved a "macro decision". I also accept that the Council had to take a decision about the extent to which it would analyse in detail the likely impact on individuals of the options which it had identified. As was accepted, however, by the Council, that must be seen in the context of all the work that the Council had done as part of the transformation programme. On any view, the dramatic concerns identified in Mr Ally's report of November 2010 were a highly significant feature of that context. The claimants' analysis of all that was done by the Council in the period from November 2010 onwards in my view undeniably shows that the Council did not in any real sense refine and focus what in November 2010 was necessarily a "high level and generalised" description of the likely impact of moving to "critical only". It is difficult to see how, in the circumstances of the present case, "due regard" could be paid to the matters identified in s 49A without some attempt at assessment of the practical impact on those whose needs in a particular respect fell into the "substantial" band but not into the "critical" band.

It is apparent from the witness statements which have been made in these proceedings by Mr Hay that he had a strong belief that no one with "substantial" needs would go unheeded or unassisted. That belief, however, was not made apparent to members, nor – even in the light of what is said in his witness statements – is it clear what this would mean in practical terms for those affected.

The decision to consult "on broad options" required consideration of a subsidiary question whether to go beyond generalities in assessing the likely impact of the proposed course upon individuals with "substantial" needs. At the very least it seems to me that in order to pay "due regard" the Council when deciding to consult "on broad options" needed to consider whether its answer to the subsidiary question was consistent with its duty under s 49A. The submission now made by the Council is that it would have been impossible to do so: but that was not a feature of the analysis put to members, and the assertion is one which runs counter to what Mr Ally had said about the ability to refine the analysis in his November 2010 report.

I readily accept that throughout the process the Council was giving consideration to how to address the needs of the disabled. In that sense its decisions taken in relation to adult social care were decisions which were relevant to its performance of the s 49A duty. That is not the same thing, however, as doing what s 49A seeks to ensure: namely to consider the impact of a proposed decision and ask whether a decision with that potential impact would be consistent with the need to pay due regard to the principles of disability equality (see agreed propositions viii, ix, x and xxi).

As noted earlier, I accept that if Mr Hay had thought that the expenditure targets were insufficient for the discharge of the Council's statutory duties under s 49A he would have advised Cabinet to recommend to the full Council that further spending resources be allocated to the Directorate (even if they had to come from other budgets or from reserves). Conspicuously absent, however, from the material before Cabinet was any express statement that Cabinet must consider whether s 49A required it to take this course, in particular because of the potential severity of the impact of the proposed move to "critical only."

In my view the evidence as a whole makes clear that there was a failure by the Council on 1 March 2011 and Cabinet on 14 March 2011 to focus on the questions which agreed propositions viii, ix, x and xxi required to be asked. The failure to ask the right questions must, to my mind, lead to the conclusion that the decisions of 1 and 14 March 2011 so far as concerns the New Offer for Adult Social Care were unlawful and cannot stand. Moreover, even if members were able to form some sort of opinion as to the broad impact of the move to "critical only", there was not in the material prepared for the meetings any assessment of the extent to which such mitigating factors as were mentioned would or would not reduce the potential severity of the proposed move to "critical only". True, there were passages in this material which acknowledged complaints about lack of detail in the consultation papers and purported to reply: but the reply did not meet the complaints. The passage in the A&C March Report headed "Evaluation of Alternative Options" did not remedy these defects. In the EINAs, if members had consulted them, neither the analysis nor the suggested action plans attempted to examine what the actual impact of the move to "critical only" would be or how it would be affected by mitigating measures. Had members appreciated the need to consider the right questions, they would not have had the wherewithal to answer it.

I add, although it is not a determinative feature in my analysis, that in its evidence the Council acknowledged that financial constraints played a part in the proposal to move to "critical only." That fact of itself involves no breach of s 49A: authorities must seek value for money and must balance the interests of local taxpayers with those of service recipients. However the stance of the Council in the present proceedings has involved an assertion (see e.g. Mr Hay's first statement at para 58) that the position already reached in Birmingham meant that there was no more room for manoeuvre; it might be that other authorities could cope for a while longer by making the sort of savings the Council had already made, but the Council could not. It may be that this belief underlay Council officers' approach to the decisions to be taken on 1 and 14 March. The material prepared for consideration on those dates did not consider the possibility that this belief might not be right.

Thus I conclude that there was a failure in the material prepared for consideration on 1 and 14 March to address the questions which arose when considering whether the impact on the disabled of the move to "critical only" was so serious that an alternative which was not so draconian should be identified and funded to the extent necessary by savings elsewhere. In reaching this conclusion I should not be taken to make any personal criticism of officers of the council. By way of comment only – for it is not necessary to my decision – I observe that council officers were, as Mr Arden submitted, working under pressure of time and resources. Mr Hay said at para 44 of his first statement that for them disability discrimination - or the promotion of disability equality - was not, discretely, a major feature, because virtually the whole of their work was directed towards combating its effects and seeking to advance those who suffer from it. The combination of these factors, I believe, may well have led them to lose sight of what s 49A required in the context of something as potentially devastating as a move to "critical only."

There were other contentions of the claimants on the question whether the Council's consideration of the move to "critical only" met the requirement to have due regard to the matters listed in s 49A. In the light of my conclusion on the principal contentions I can deal with these other contentions relatively briefly. I take them in turn:

i) A first contention in the claimants' speaking note concerned agreed propositions ii, xv and xvii. The assertion was that there had been a failure to pay due regard before a decision was taken in principle and when the proposed policy was still being formulated. That assertion, however, was dependant upon the premise that there had been a wrong assumption on the part of the Council that due regard for the duty was "inherent" in the adult community care scheme. It is not necessary for me to reach any conclusion on that premise. I have noted earlier the Council's submissions that its decisions reflected the duty in s 49A, and have concluded that that does not assist the Council to escape from the conclusion that the process adopted in the period from November 2010 onwards was incompatible with the fulfilment of the duty under s 49A.

ii) It was said that the EINAs were prepared far too late. As to that, it would be wrong to attach too much significance to the formal production of an EINA as long as during the process leading up to the decision proper consideration is being given to the need to pay "due regard".

iii) Reliance was placed on the lack of evidence that any member read the relevant full EINA prior to taking the relevant decisions. This is not a question which I need to examine in the present case. The differences between the summaries given in the papers provided to members and the fuller accounts in the EINAs are no more than matters of detail and are not germane to the conclusions that I have reached above. I think it preferable that the question raised in this regard is left over for decision in a case where it has a critical impact on the outcome.

iv) Reliance was placed on the absence of evidence from any member, or anyone else present at a relevant meeting, that specific regard was paid to the equality duties at that meeting. As to that, if there had been evidence of that kind it would have required very careful consideration. There was no evidence of that kind, and accordingly to the extent that such evidence might have assisted the Council to answer the challenge, it was not present. I do not need to decide in the present case whether the absence of such evidence of itself could enable a challenge to succeed. Here, too, I think that the point is best left over to a case where it is critical to the outcome.

v) It was said that Cabinet was told on 14 March that the savings identified in the budget were "mandatory" and this prevented Cabinet from being able to cure a lack of due regard at the time the budget was set. I do not think that this adds anything to the analysis identified earlier. The crucial point is that Cabinet did not address the right questions.

The claimants' further note dated 16 April 2011 commented on the recently submitted third witness statement of Mr Dransfield. As noted earlier, the claimants accepted his evidence that the £33.2m identified in the November Business Plan Consultation and subsequent documents included an element for reductions in third party care payments. The note continued:

This was inevitably a last minute addition to the grounds of challenge. It was not the subject of further evidence on the part of the Council, and I do not think it appropriate to reach any conclusion on it in the absence of such evidence.

(2) s 49A: other aspects of the proposed changes

The proposal to move to "critical only" was an addition to other changes which had already been identified as proposals in the course of developing the Council's transformation programme. The claimants' submissions at various points criticised the approach taken by the Council to the introduction of a Universal RAS and the "Quickheart" software. These points were subsidiary to the move to "critical" only, and I think it would be artificial to reach any conclusion on them in isolation.

(3) general administrative law principles of "illegality"

As noted in paragraph 2 above, the claimants identified as a separate head of challenge a failure by the Council to "ask itself the right questions". It has long been settled that a failure to have a correct understanding of the law governing a particular decision may lead to challenge under the head which Lord Diplock described as "illegality". In the course of argument, however, Mr Wise rightly acknowledged that this head of challenge did not add anything to the main ground of challenge concerning failure to comply with s 49A.

(4) Consultation

It is common ground that a consultation process must provide consultees with sufficient reasons in support of particular proposals to allow an intelligent response to be made, and must ensure that the responses are conscientiously taken into account when the ultimate decision is taken. My conclusion as to the failure to comply with s 49A inevitably carries with it a conclusion that the consultation was inadequate. Just as the decision making process failed to address the right questions, the same is true of the consultation process. There are additional features of the consultation process in the present case which are troubling. The choice of words initially used by the Council – a move to a "funded service for only those of low means whose personal care needs are critical" – inevitably led consultees to believe that needs unrelated to "personal care" would not be supported – for the reasons set out in the consultation response from Sense. Even with the benefit of subsequent information the position was difficult to follow – see the detailed analysis given in the consultation response from Autism West Midlands. Additionally the consultation process failed until a very late stage to make clear that the proposed saving of £33.2 million in 2011/12 involved, as to a substantial part, a saving which had nothing to do with the move to "critical only". As regards the former, Mr Arden was able to point to some consultation responses in which the true position had clearly been understood. Nevertheless in my view there remained considerable scope for confusion on the part of those to whom the consultation had been addressed. As regards the latter, it seems to me that there are very substantial grounds for concern that consultees did not have the opportunity to assert that the true sum involved in retaining "substantial" as the criterion for eligibility was a sum which could be properly found by making savings elsewhere. Even if the Council had asked itself the right questions I would have concluded that the consultation process, for these two reasons, had not complied with what the law requires.

(5) Human rights considerations

In the course of argument it was accepted on behalf of the claimants that relevant articles in the European Convention on Human Rights did not add in substance to the heads of challenge already advanced.

Conclusion

For the reasons given in relation to issues (1) and (4) above, I conclude that the challenge succeeds. I ask the parties to seek to agree an appropriate consequential order.