Charging disabled persons for services

A recent challenge to Birmingham City Council’s policy to charge disabled persons for services at the statutory maximum has failed. Joe Thomas explains why.

The claimant (C) was a severely disabled young man who had never worked and was never going to. He sought to challenge Birmingham’s policy of recovering the maximum amount of the cost of his care even though a greater proportion of his income was recovered compared to an individual who required care but could work.

C advanced three grounds:

• Ground 1: The Council's charging policy contravenes Article 14 of the European Convention on Human Rights , taken with Article 1 of Protocol 1 to the Convention, because it discriminates against those who are severely disabled and cannot work by reason of their disability, as compared to disabled people who are able to work.
• Ground 2: The charging policy indirectly discriminates contrary to the Equality Act 2010.
• Ground 3: In formulating and maintaining the charging policy, the Council has breached the Public Sector Equality Duty set out in the Equality Act 2010, section 149.

All parties conceded that if Ground 1 succeeded, then Ground 2 would also succeed. Accordingly, submissions focussed on Ground 1. The court adopted a conventional approach and asked itself whether:

• the claim fell within the ambit of Convention Rights;
• whether the claimant has been treated differently from another individual in an analogous situation;
• if so, was such difference in treatment the result of the characteristics listed under article 14, or ‘other status’, and
• if so, was there an objective justification for that difference in treatment?

All parties accepted that receipt and use of benefits fell within the ambit of Convention Rights (namely, article 1 of Protocol 1 (the right to peaceful enjoyment of possessions). Collins Rice J applied the recent Court of Appeal authority in Jwanczuk v SSWP [2023] EWCA Civ 1156 that being ‘severely disabled so as to be unable to work’ qualified as an ‘other status’ for the purposes of article 14. This case therefore hinged on whether the C had been treated differently by Birmingham and, if so, whether there was an objective justification given Birmingham’s precarious finances.

Collins Rice J was unconvinced that there had, indeed, been a difference in treatment between C and a comparator disabled individual who could work as a result of Birmingham charging policy. Specifically, the evidence did not disaggregate the effect of regulations that discounted a disabled individual’s earned income and the impact of the policy nor did the evidence grapple with the impact of the total cost of care provided to C of which only a proportion was recovered. Overall, Collins Rice J held “Evidence of an indirect discriminatory effect caused by the charging policy is elusive in the present challenge” (paragraph 68).

Collins Rice J still, however, considered the question of justification. In the context of socio-economic matters, the court emphasised that there was a low intensity of review regarding the decisions of public authorities who were democratically accountable. Specifically, she held that such decisions will ‘generally be respected unless it is manifestly without reasonable foundation’ (paragraph 94). She held that the legitimate aim of incentivising work was not applicable since C was never going to work. However, she held that the Local Authority balancing its books was a legitimate aim for Birmingham given its disastrous financial situation. Having considered the package of provision and support put in place for C and balanced that against the need for Birmingham to recover from acute financial pressures and applying a low intensity of review on the question of social-economic matters, Collins Rice J held that Birmingham’s policy was justified even if C had adduced evidence that demonstrated different treatment.

Collins Rice J also dismissed the claim that the Council had failed to discharge its public sector equality duty (‘PSED’) since based on the facts before him the ‘Council considered the substantive aspects of the PSED relevant to this challenge with real focus and anxiety’.

Comment

Whilst much of this case focussed on the specific facts of Birmingham’s precarious financial situation and the failure of the C to evidentially prove a difference in treatment arising from the policy, this case will interest anyone with the oversight of social care and recovery of fees on at least two fronts:

• To bring a successful discrimination claim, a Claimant must demonstrate a causal link between a policy and decision and different treatment. This is particularly challenging when it is necessary to disaggregate the effects of a particular decision from a package of measures.
• Courts grant considerable deference when it comes to questions of justification in socio-economic matters and that extends to paying for and recovering the cost of social care. The court did remind itself that it is not lawful to discriminate merely because it is cheaper to discriminate. Nevertheless, the deference shown to Birmingham City Council in this case is noteworthy and a reminder that courts will generally respect the inherently challenging judgments that councils must make when balancing competing economic and social priorities where there is simply not enough money.

Joe Thomas is a Barrister at Landmark Chambers.