Wednesday, 13 January 2021

Using the law to challenge charges for social care

 A few weeks ago I was reminded that - while we are all focussed on how to survive through the current difficulties - there are yet other struggles that disabled people and their allies are engaged in which have been going on for years and which continue.  The reminder came because of a rare victory against the impact of the failure to properly fund social care. 

The stark facts of the funding crisis facing social care are that some councils “could run out of cash”  and it would require £2.1bn to keep provision at the current levels (allowing for increase in demand) by 2023/4 and £10bn to restore provision to what was available in 2010/11.  

There are many ways in which this situation is impacting on older and/or disabled people and their families.  One is that local authorities are taking more of people’s benefit income to pay for the (often reduced) social care that they have been deemed eligible to need.

This is what happened in Norfolk, resulting in a fight-back from those affected and culminating in a Judicial Review of the local authority’s proposed increases in social care charges.

As Disability News Service reported, the High Court found that Norfolk County Council’s proposed new charging policy discriminated against people with high support needs because they would be charged proportionately more than those with lower support needs.

This court case came about as a result of many months of grassroots campaigning by an informal network which, organised via a Facebook group, grew to over 500 people. Growing such a network is important as the more people involved the more likely it is that someone will come forward who both qualifies for legal aid and who feels strong enough to go through what is usually a long drawn-out and emotionally draining process. 

During the course of campaigning, the group issued Freedom of Information requests to both government and other local authorities.  They discovered that the Department of Health and Social Care has little or no information on how local authorities are using the Guidance and Regulations relating to charging; and that other local authorities are also seeking to raise more money from charges, including by adopting the same changes as Norfolk. This confirms research carried out in 2018 which concluded that charges are a ‘tax on the need for support’. 

The solicitors for the claimant have issued a statement which describes the case and what was challenged. Inclusion London also hosted a webinar with the barrister who argued the case.  However, I thought it might be useful to summarise key details of the judgement in the hope that it might encourage people in other local authority areas to consider whether their Council’s charging policy might also be challenged. 

The case concerned a young woman who had previously paid a charge of £16.88 per week as her means-tested contribution towards the support she needed but who, when the changes were fully implemented, would be charged £50.53 per week.  This would have resulted in an almost 20% reduction in her income which was entirely from benefits.

This increase in charges resulted from two changes proposed by the Council.  The first was to reduce (in three stages) the amount that a person’s income should not fall below (the Minimum Income Guarantee); the second to take into account all of the daily living component of Personal Independence Payment.

Her lawyers argued that “The Charging Policy discriminates against severely disabled people, contrary to Article 14 read with Article 1 of Protocol 1 and/or Article 8 of the European Convention on Human Rights”.

The European Convention on Human Rights was brought into UK legislation by Section 6 of the Human Rights Act 1998, which makes it "unlawful for a public authority to act in a way which is incompatible with a Convention right”.

Article 1 of Protocol 1 of the Convention says that each person “is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law…” It has been long established that financial support a person receives from the government, including welfare benefits, falls within this article.

And Article 14 says that “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.”

There were four questions that the Judge in this case had to consider:

  1. Do the circumstances "fall within the ambit" of one or more of the Convention rights?

Both sides agreed that it did.

2. Has there been a difference of treatment on the ground of one of the characteristics listed or "other status"?

Lawyers for the claimant argued that the difference of treatment related to being severely disabled, which they said was covered by the term “other status”.  The judge agreed that being severely disabled was “exactly the sort of ‘personal characteristic’ which has always been recognised as protected from unjustified discrimination under Article 14”.

Norfolk County Council argued that ‘severely disabled’ was not precise enough a term in order to be covered by Article 14. The judge ruled that, on the contrary, this had been clearly assessed and determined to be the case by the fact that the claimant had been placed in the Support Group of ESA and received the enhanced daily living component of PIP.

3. Have two people who are in a similar position been treated differently?

Lawyers for the claimant argued that the charging policy meant that a higher proportion of her income was taken in charges than was the case for someone who was less severely disabled.

This argument rested on two points. The young woman could not work and was therefore entirely reliant on benefits, unlike someone with lower support needs who might be able to work and whose earned income (according to the Regulations) cannot be taken into account when assessing how much they should be charged. In addition, her assessable income was higher because she qualified for the enhanced rate of PIP daily living allowance. 

The Council argued that the charging policy was not discriminatory as it applied to everyone.  The judge said that it was because the impact was different for people who were severely disabled. “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”.

4. Is there an objective justification for the different treatment?

Norfolk County Council put forward four objectives for its charging policy.  Its main argument was that it was facing a funding shortfall of £39m over three years. It also highlighted an aim of increasing employment amongst people with learning disabilities and pledged to provide £1m of the projected £5m savings into helping to achieve this. 

The judge quoted a previous case which ruled that "Saving public expenditure can be a legitimate aim but will not of itself provide justification for differential treatment unless there is, in the case in hand, a reasonable relationship of proportionality between the aim sought to be achieved, and the means chosen to pursue it (i.e. the measure under challenge)”.

The judge found that the Council did not recognise - in any of its documents or discussions - the bigger impact of the policy on severely disabled people compared with less disabled people. Neither had the Council considered an alternative approach suggested in the Guidance, namely that a percentage of income above the Minimum Income Guarantee could be taken rather than all of it. 

He also said that the impact of the policy on the claimant would restrict her independence which contradicts one of the Council’s stated aims of changing the charging regime.

The judge concluded that “The objectives identified are not sufficiently important to justify discriminating against the most severely disabled as compared with the less severely disabled in order to advance it”.

There were a number of other points which were argued during this case but I’ve identified what seem to be the main ones in the hope that this will help other disabled people, their allies and organisations to identify possible similar challenges to what other local authorities are doing or planning to do with their charging policies.

Some useful links:

Inclusion London’s Disability Justice Project aims to help disabled people use the law to fight for their rights. See, in particular: for information about how councils should carry out financial assessments in order to charge for social care.

How to find legal advice

How to find out if you might qualify for legal aid: