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Social Welfare Update: Norfolk Council’s policy on charging for services unlawfully discriminated against severely disabled service-users and breached their Human Rights

Friday 30 April 2021

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Factual background

SH the Claimant in this judicial review claim, was aged 24 and has Down’s syndrome, severe learning and physical disabilities.

SH’s income was provided by Employment and Support Allowance (“ESA”) and Personal Independence Payment (“PIP”) daily living component at the enhanced rate and a PIP mobility component. Norfolk Council provided SH with a care package and made a means-tested charge. Norfolk introduced a charging policy that would increase SH’s charge from £16.88 to £50.53 per week, to be taken from her welfare benefits. As a result, Norfolk’s policy reduced Norfolk’s minimum income guarantee and took into account income unless required under the Care and Support (Charging and Assessment of Resources) Regulations 2014 (“C&S Regs 2014”) to be disregarded. The C&S Regs 2014 prevent from being taken into account earnings from employment/self-employment, housing-related costs, the mobility element of PIP but not the daily living element of PIP and any disability related expenditure (“DRE”) paid for with disability benefits. The result of the combination of taking into account SH’s PIP daily living component and reduction in Norfolk’s minimum income guarantee caused big increases in the charges for SH.

In SH’s claim for judicial review she claimed the charging policy discriminated against severely disabled people contrary to Article 14 read with A1P1 and/or Article 8 ECHR and thus was an unlawful breach of statutory duty under the Human Rights Act 1998.
 

The court’s decision

SH’s claim  was successful and the court ordered Norfolk to amend or withdraw their policy given that it unlawfully discriminated against severely disabled service users and breached their human rights.

The judge held that a person identified as  “severely disabled” amounted to a class of persons of “other status” under Article 14 of the ECHR for the purpose of this claim, the status being ascertainable by reference to SH’s entitlement to specific rates of ESA an PIP.

Further, the judge held there was a difference in treatment between 2 persons in an analogous situation such that the proportion of income that SH and other severely disabled people with high care needs and significant barriers to work were required to pay under the charging policy was greater than the proportion of income that people who were disabled but not severely disabled who were covered by the charging policy were required to pay.

Moreover, the judge held that there was no objective justification for the difference in treatment, applying the high threshold tests of “manifestly without reasonable foundation”. Norfolk Council relied on the shortfall it faced in adult social care funding. The court held that there was an alternative approach that would raise the same amount of revenue which had not been considered; there was no relationship between Norfolk’s policy aims and the specific discriminatory impact at all; the discriminatory impact was “a perverse and unintended outcome”. The Care and Support statutory guidance, which, by s 78 Care Act 2014, a council must act under, was very relevant to the policy development and decision making as it warns against the approach Norfolk adopted and suggests an alternative less intrusive measure should be taken.
 

Comment

This case is of interest in terms of the court’s willingness to identify severely disabled persons as a class of persons of “other status” under Article 14. This is consistent with courts emphasising that a “generous” interpretation of “status” is appropriate (R(Stott) v SSJ [2020] AC 51 at 56(i) and R(SC) v SSWP [2019] EWCA Civ 615 at 64). There are only “rare example[s]” of recent cases in which the ECtHR has refused to find the applicant had a “status”. As Leggatt LJ explained in SC at 67 “it must be possible to identify a ground for the difference in treatment in terms of a characteristic or classification [of the person] which is not merely a description of the difference in treatment itself”, but otherwise all that is required is an “identifiable characteristic”. The Courts have repeatedly shown a willingness to interpret "other status" for the purposes of Article 14 widely as in Paulik v Slovakia (10699/05) the ECtHR accepted that "other status" could be defined as fathers whose paternity had been declared by judicial decision. In Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47 the Supreme Court accepted that "other status" could be defined as being a parent of a severely disabled child requiring inpatient hospital treatment lasting longer than 84 days.

The case is also a reminder to local authorities to carefully consider Care and Support statutory guidance in respect of justification of its policies and practices not only in the context of the Equality Act 2010 but also Article 14 of the ECHR.

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