Suffering in silence?

Thompsons Solicitors
November 15, 2012

Not many people will have noticed, but an important case was decided last week in England regarding the rights of older and disabled people to receive services, such as care homes and day centres, appropriate to their needs from public authorities. The judge found that when planning their services (including their budgets), public authorities like councils have to give due regard to the potential impact on vulnerable people of possible care home closures or reduced support. So, what does this mean?

The majority of people may not be aware that age as well as disability is a protected characteristic under the Equality Act. Under the Act, all public authorities have what is called a “public sector equality duty” towards people with a protected characteristic. This means when making any decisions that will affect people protected by the Act (for example, whether or not to close a care home) they must have due regard to any particular disadvantages that vulnerable groups affected by the decision might face and take steps to ensure that their needs are met. If the authority does not do this, they could be unlawfully discriminating against those protected by the Act. This is an ongoing duty and has to be shown to be exercised in substance and with an open mind, i.e. “tick box” exercises full of jargon are not enough – they have to show they have considered the impact that their decision will have on the lives of the protected individuals.

Most public authorities fulfil their duty by carrying out Equality Impact Assessments, as the council did in this case regarding cuts to their care homes budget. However, the judge held that the council had failed in the assessment to properly consider the need to eliminate discrimination and to advance equality of opportunity for elderly and disabled residents of the care homes. The council had ignored the risk that their decision to effectively cut funding for care homes could damage the quantity and quality of care given to the care home residents and had not taken any steps to address this risk. As a result, the judge overturned the decision by the council to cut the fees paid to care homes.

It’s important to remember that councils and other public authorities don’t always know best when it comes to safeguarding the rights of vulnerable people such as the elderly and the disabled. The only way to be sure that your rights, or the rights of someone you love, are not being breached in a situation like this is to seek legal advice.