Council’s charging policy held unlawful as it discriminated against severely disabled persons

Hannah Gibbs looks at the impact of a recent High Court decision on local authority charging policies.

This case concerned a 24-year-old woman with Down’s Syndrome, who relied completely on the welfare and benefit system as she could not earn due to her physical disabilities. She was severely disabled, and thus entitled to a higher amount of benefits compared to people who were disabled but not severely disabled. Although the Council’s Charging Policy applied to all disabled persons, the basis on which it charged the severely disabled in respect of their care needs was held unlawful as it discriminated against them compared to everyone else receiving Council services covered by the Charging Policy.

The Court was satisfied that the criteria for establishing discrimination contrary to article 14 were met, namely: that (1) ‘severely disabled’ is a protected status under article 14, (2) the Charging Policy was discriminatory as it, (3) treated persons in analogous positions differently and (4) there was no objective justification for such difference in treatment. The rest of this article expands on these grounds.

The new Charging Policy involved reducing the local authority’s minimum income guarantee and taking into account the personal independence daily living component (whereas previously this had been disregarded). By contrast, it did not take into account earnings from employment or self-employment (which it was prohibited to do under the the Care and Support (Charging and Assessment of Resources) Regulations 2014). As Griffiths J said at §36:

"Thus, the Council has exercised its discretion to charge SH the maximum permissible (disregarding only those elements it is required to disregard by law), and, at the same time, has lowered the overall cap on her charges by reducing the Council’s minimum income guarantee.

"The practical outcome was that the severely disabled, like SH, who, owing to their disabilities could not earn, were required to pay for their care needs with every penny of the assessable income as compared to the less disabled persons who could earn, and their earnings were not taken into account when calculating the Council charges."

Article 14 of the Convention provides:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The court recognised that being a “severely disabled person” is an “other status” for the purposes of article 14. The situation of the severely disabled (with high needs-based assessable benefits and no earning capacity) was held analogous with the position of other persons being charged under the Charging Policy, because they were all receiving the Council services covered by the Charging Policy.

The Charging Policy, in practice, meant that a higher proportion of the income of the severely disabled was taken than the proportion taken from the less disabled, who were able to supplement their benefits allowance with earnings from employment or self-employment. On these bases, the court concluded that there had been a difference in treatment between two persons in an analogous situation.

Further, the court held that the objectives, which the Charging Policy was supposed to advance, were not sufficiently important to justify discriminating against the most severely disabled as compared with the less severely disabled. The court noted that the Council did not take into consideration a less intrusive measure to meet the policy objective of balancing costs and revenue when formulating its policy.

Balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objectives, the court held that the discriminatory effect of the Charging Policy was irrational, unnecessary, and wholly out of proportion. Under the new Charging Policy, the claimant would have been left with less money to spend towards social activities or would have been forced to reduce the use of Council services, such as the use of a personal assistant, which would have a direct impact on her independence.

This case is of wider significance, not least in terms of a successful challenge to the decision of a local authority on grounds of hard-to-establish discrimination, but also because of the broader lessons for local authorities; most prominently, the requirement to consider how the policies would affect all classes of persons in a nuanced and careful way.

Hannah Gibbs is an expert across public law, including health and social care law. She has co-authored NHS Law and Practice with David Lock QC. She is also a longstanding teacher in medical law at the London School of Economics.

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