Local authority ordered to withdraw charging policy for council-provided care

SH claimed that the change, which substantially increased those charges, indirectly discriminated against her as a severely disabled person in breach of her rights under the Human Rights Act 1998, the European Convention on Human Rights and the Equality Act 2010.

Matrix Chambers, whose Emma Foubister and Zoe Leventhal appeared for SH, explained that the new policy “significantly reduced the minimum level of income (the “Minimum Income Guarantee” or “MIG”) that an adult in SH’s position could receive before being charged for care. It also included the PIP Enhanced Daily Living Rate in the calculation of the MIG. Earnings from employment or self-employment were disregarded from the income assessment.”

In SH, R (On the Application Of) v Norfolk County Council & Anor [2020] EWHC 3436 Mr Justice Griffiths noted that Norfolk had “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 judge said: “The difference in treatment relied upon by SH is that the Charging Policy has a disparate impact on severely disabled people like SH compared with its impact on others. The proportion of earnings that she and other severely disabled people with high care needs and significant barriers to work are required to pay under the Charging Policy is greater than the proportion of earnings that people who are disabled but not severely disabled are required to pay…..

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“The way the Charging Policy is constructed means that, because her needs as a severely disabled person are higher than the needs of a less severely disabled person, the assessable proportion of her income is higher than theirs. Her needs-based benefits are awarded at higher rates (daily living PIP and ESA) and are fully assessed, and their earnings from employment or self-employment are not available to her and other severely disabled people, but are not assessed.”

Mr Justice Griffiths said: “The situation of the severely disabled (with high needs-based assessable benefits and no earning capacity) and everyone else being charged under the Charging Policy is analogous because they are all receiving council services covered by the Charging Policy. Their treatment is different because the Charging Policy means that a higher proportion of SH's earnings (and of other severely disabled people in the same position) is assessed than theirs, and the result is that she is charged proportionately more than they are.

“I conclude, therefore, that there has been a difference of treatment between two persons in an analogous situation.”

He went on to conclude that the differential impact of the council’s charging policy on the severely disabled was “manifestly without reasonable foundation”.

The judge rejected the council’s argument that this could be justified, saying: “No real effort has been made in argument to justify the discriminatory impact of the Charging Policy on the severely disabled (as opposed to explaining the sums sought to be raised by the Policy overall) by reference to the council's stated aims. That impact was a perverse and unintended outcome.”

Mr Justice Griffiths set aside the council’s decision(s) to charge the claimant pursuant to the Charging Policy and required the council to amend and/or withdraw the Charging Policy to remove the discriminatory impact.

He also declared that the claimant's Article 14 and A1P1 rights were breached by the Charging Policy.

Leigh Day solicitor Rowan Smith, who represented SH and MH, said: “[This] judgment means that Norfolk County Council will have to rethink its discriminatory care charges policy. This is a complete vindication of the bravery our client and her mother have shown to bring this case, which we hope will have an immensely positive impact on the lives of people with disabilities and their families across Norfolk and the whole country. This case would not have been possible without the access to justice afforded to SH by legal aid.”

He added that there was no lawful basis for the council continuing with its policy. “We fully expect our client’s human rights to be properly respected when the council comes to changing it.”

Cllr Bill Borrett, Cabinet Member for adult social care and public health at Norfolk, said: “In his judgment, the judge said that our charging policy was discriminatory but in an ‘unintended and unforeseen way’.

“We are sorry for the distress this has caused. The council is committed to working with the claimant and her family to resolve the issues raised in this judgment as quickly as possible.

“We had already paused implementation of our charging arrangements that had been due to come into effect from last April, and will now bring forward new proposals to cabinet as soon as possible to rectify the situation.”