Claimant wins High Court battle over social and life skills activities and disability related expenditure

The Royal Borough of Windsor & Maidenhead has lost a High Court case over whether a 25-year-old man with autism can count his social and life skills activities as disability related expenditure (DRE).

Dexter Dias KC, sitting as a deputy High Court judge said: “The extraordinary feature of the [council’s] approach is that without any sufficient analysis” it discounted spending that allowed claimant RW to develop skills and confidence in an environment where he feels secure.

RW said the council did not deem activity costs incurred when he attended a local support group as DRE for the purposes of paragraph 4 of schedule 1 to the Care and Support (Charging and Assessment of Resources) Regulations 2014. He said this materially affected his available income and created hardship.

Judge Dias said: “The case raises important questions of principle about our collective duty towards members of the community who live with disabilities that make their daily life more difficult.”

In June 2021, the council and RW agreed a care plan under which it funds his care and support through a direct payment to him.

He attends social and life skills group Step Together three times a week at £80 plus VAT per day, paid from his direct payment.

But the cost of additional activities is some £15 per session extra and RW said these were reasonably incurred expenditure related to his disability as there is no group function without the activities.

The council though refused to classify the activities as DRE as it said RW had chosen them, so they are not disability-related.

It argued there were cheaper ways for RW to have social interaction and in any event such expenditure should come from his personal budget.

Judge Dias said the first issue to decide whether the costs involved were disability-related.

He said the council argued that “it cannot sensibly be claimed that every time the claimant chooses to incur an activity cost it necessarily must be treated as DRE.

“To test that proposition, [the council] states that it would be unreasonable if the claimant chose to attend exorbitant or extravagant excursions which [it] would then be obliged to treat as DRE.”

The judge concluded: “Unquestionably there are activities that have been disallowed which are capable of being DRE, and in the judgment of the court undoubtedly are, such as budgeting and travel training.

“These assist the claimant develop his social interaction skills, ability to communicate, function in group and social settings, and develop independence.

“Individual activities may be on one side or another of the line. However, what is plain is that given the needs arising from the claimant’s disability, a significant number of activities are capable of constituting DRE. The approach of the defendant to blanket-disallow them as not disability-related is flawed.”

Turning to whether the costs were necessary and reasonably incurred, Judge Dias said: “The extraordinary feature of the [council’s] approach is that without any sufficient analysis it has discounted expenditure that permits this person living with disability to develop his social skills and confidence through the arranged groups activities in the context of an environment he feels secure in.”

He said he had to weigh the value RW placed on the ST group, the “obvious negative impact it would have should he not attend the group activities” and the difficulty RW would have in forming relationships at multiple groups elsewhere.

“I find that the [council] has not or not sufficiently evaluated these competing consideration,” he said.

“If it did, it would conclude that the cost savings of sourcing support services elsewhere would be significantly outweighed by the negative impacts on the claimant.

“Here it is plain that the wrong approach has been taken and factors that are obviously relevant have not been considered. Undue emphasis has been placed on the question of cost without properly considering impact on the person living with disability at the heart of this case who needs the support of the community as part of the vindication of his right under the UN Convention to live independently and autonomously.”

Judge Dias also rejected the council’s argument that RW sought to improperly supplement his personal budget by treating the activity costs as DRE.

He said: “The logic of this submission is that if something is disability-related, then it is part of the care and support.

“It fails to understand that there is a separate category of expenditure both in the regulations and the statutory guidance on disability-related expenditure.”

The judge concluded: “The power contained in the DRE regulations has as its existential purpose the reasonable and fair assessment of the ways that we as a community can support people living with disability. This is the approach the [council] must take.”

Commenting on the case, Lucy Cadd, a solicitor at law firm Leigh Day - which acted for RW - said: “This is a very sensible and robust judgment that will have important implications for the way claims for disability related expenditure should be considered by local authorities. It confirms that the individual must be placed front and centre in the decision-making process and that their wishes and feelings be taken seriously. 

“The local authority in this case argued that the claimant should be attending alternative activities purely because they were cheaper. The court robustly disagreed with this approach and found that expenditure must be viewed rationally as well as humanely and in keeping with the principle that outcomes and decisions should not be made exclusively for financial reasons."

Cadd said local authorities must now consider any DRE claim on a case-by-case basis, flexibly interpreting regulations and guidance “which have been informed by the UN Convention on the Rights of People with Disabilities”.

Mark Smulian