Challenging the coming cuts to children’s services budgets

by stevebroach

Things feel pretty bad in children’s services already, but they are about to get much worse. The cuts to local authority budgets to date have resulted in significantly greater reductions to adult social care than to children’s services. But with local authorities currently working on their 2015-16 budgets, children’s services are now in the firing line as any further cuts to adult social care would leave councils clearly unable to comply with their statutory duties.

To give two examples from very different parts of the country:

It is undeniable that local authorities are being placed in an increasingly difficult position by the swingeing cuts imposed on them by central government. However there are still choices to be made:

  • Some councils still have significant ‘reserves’ – funds in the bank not allocated for a specific purpose. While it is obvious that reserves can only be spent once, councils should at least be considering using reserves to mitigate the worst impact of the cuts on vulnerable groups such as children. It will be misleading (and in my view unlawful) for councils to suggest in their consultations that they ‘have’ to cut budgets when they have significant reserves in place. This was one of the errors made by Haringey in their consultation on the local council tax reduction scheme, as shown by the Supreme Court judgment in Moseley v Haringey.
  • Councils are entitled to raise council tax. I understand the problems with this – including that (i) council tax is a regressive tax that hits poorer people proportionately harder than richer people, (ii) the benefit which meant the poorest residents didn’t have to pay it has been abolished so even those whose sole income is state benefits have to pay some of their council tax liability and (ii) council tax would need to be raised significantly to replace the cuts from central government. However raising council tax remains a choice which councils can consider as an alternative to cuts. Any council which wants to raise council tax to any significant extent needs to hold a local referendum – which would be an opportunity to give local residents a choice about whether they are prepared to pay more tax to fund children’s services. We shall see if any council is willing to ask this question.
  • Most fundamentally, councils have a choice about which services they cut to make budgets balance. A saving of (for example) £1.75m compared with £1.85m in a disabled children’s budget area means more services available for children and families. The question which always strikes me is whether cuts are being targeted at groups least likely to complain and take legal action. How many local authorities are proposing reduction to the road maintenance budgets or bin collections – the things which matter most to residents without specialist needs for services?

It is important to bear in mind that local authority budgets are only estimates of expenditure. A local authority still has to comply with its statutory duties no matter what budget it has set. However the nature of many of those duties – for example the key duty to provide disabled children with social care services in the CSDPA 1970 s 2 – are heavily influenced by the amount of money which the authority says it has available at any given moment in time. And in the real world, the legal obligations are less important than the amount of money which the Director of Children’s Services has in his or her budget to actually provide services.

So proposed budget cuts to children’s services need to be challenged. Where the cut is arguably going to lead to the local authority being unable to comply with its statutory duties – for example the various duties in relation to short breaks – this must be pointed out. Local groups can and should respond to the consultations. But I also suggest legal advice is taken from specialist solicitors at an early stage – because challenges to financial decisions need to be brought even more promptly than other judicial review cases. If the consultation process is unlawful it may be possible to bring a legal challenge before the final decision is taken. So the earlier advice is sought once cuts are proposed, the better.

Two key grounds of challenge to financial decisions are likely to be consultation and the public sector equality duty (PSED). The Supreme Court’s judgment in Moseley shows that a high standard of fairness is required in consultations which propose cuts to benefits or services. In particular, consultees must be provided with sufficient information about the proposals to make an informed and intelligent response – which is likely to include information about alternative options which were considered and rejected prior to the consultation. How many consultations on proposed budget cuts taking place at the moment include any information about alternatives?

In relation to the PSED (Equality Act 2010 s 149), the key case is now the Court of Appeal’s judgment in Brackingthe successful challenge to the decision to close the Independent Living Fund (judgment in round two of that litigation is currently awaited from the High Court). The Court of Appeal helpfully summarise the legal principles governing the operation of the PSED at para 24 of the judgment. However the two key principles to emerge from the case (in my view) are these:

  • Decision makers must have a proper understanding of the impact of cuts decisions on disabled people and other groups with protected characteristics (eg children) when they make cuts decisions. Astonishingly, the Court of Appeal held in Bracking that the Minister for Disabled People did not properly understand the impact of her decision to close the Independent Living Fund on the disabled people affected when she took her decision.
  • It is necessary for decision makers to consider the particular needs set out in the PSED – for example the need to advance equality of opportunity for disabled people – in their decision making, not just refer generally to the impact once this has been understood.

Challenges to financial decision making are difficult – but not impossible. To end on a high note, I’d emphasise again the decision of the High Court in W, M and others v Birmingham CC the successful challenge to Birmingham’s decision to move to ‘critical only’ adult social care. In that case, both the budget cut and the resulting social care policy were held to be unlawful by reason of breaches of the PSED and failure to carry out a lawful consultation. The sums of money at stake in the Birmingham case were huge – the cuts proposed were £33.2 million in the first year and £69.1 million in the second year. Yet this did not stop the court from allowing the application for judicial review – and to this day Birmingham continues to meet ‘substantial’ needs.

As Mr Justice Blake said in Rahman, another successful challenge to cuts in Birmingham, ‘Even where the context of decision making is financial resources in a tight budget, that does not excuse compliance with the PSEDs and indeed there is much to be said for the proposition that even in the straightened times the need for clear, well-informed decision making when assessing the impacts on less advantaged members of society is as great, if not greater.’ (para 46)

The times are about to get as straightened as they have ever been. I have a good deal of confidence that the courts will continue to take a robust approach to unfair and unlawful cuts – if cases are brought before them, which requires disabled people, children and young people, families, local and national groups and lawyers to work together.

Please post details (including links if possible) of any proposed cuts to local authority budgets affecting children – or disabled adults – in the comments below. It would be good to build up a picture of the cuts proposed across the country.