Outer House refuses to reduce social care charging policy after discrimination challenge

About this case:

• Citation:
  [2024] CSOH 44
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Braid

BB, a 40-year-old disabled man assessed as requiring 15.5 hours of social care services each week, argued that the change in policy unlawfully discriminated against him. He categorised an increase to the taper applied to his remaining income beyond the Minimum Income Threshold as the provision, criteria or practice under challenge.

The petition was heard by Lord Braid. M Dailly, solicitor advocate, appeared for the petitioner and Crawford KC and D Blair, advocate, for the respondent.

Duty to consult

The cost of the petitioner’s care was met by the respondent, subject to a weekly charge levied on the petitioner under section 87 of the Social Work (Scotland) Act 1968. In the financial year 2022/23, this charge was £62.30 per week. From 10 April 2023, the charge increased to £68.59 per week in line with an increase in welfare benefits. The petitioner took no issue with this increase. However, from 24 April 2023 it was increased again to £103.14 per week as a result of changes to the respondent’s charging policy.

While the petitioner’s weekly charge was later reduced to £72.59 after the respondent agreed to classify some of his expenditure as Disability Related Expenditure, he contended that the remaining increase of £4 per week was still discriminatory. In particular, he challenged the decision to increase the taper as being greater when applied to a single severely disabled person under the age of 60 than to comparator groups.

The procedural ground of challenge was that the respondent failed to undertake an adequate Equality Impact Assessment in terms of section 149 of the Equality Act 2010 before implementing the change to its charging policy. Separately, it was submitted that it breached its duty at common law to consult service users about the proposed change.

The solicitor advocate for the petitioner further submitted that the English case of R (SH) v Norfolk County Council (2021), in which it was ruled that an alteration to a charging policy severely discriminated against a young woman with Down’s Syndrome, was sufficiently analogous to the present case that the same conclusion should be reached. For the respondent it was submitted that the policy was objectively justified and proportionate, falling within the sphere of socio-economic policy.

Not necessarily because of difference

In his decision, Lord Braid observed: “It seems to me that the petitioner’s entire approach, which is to categorise as the PCP under challenge the decision to increase the taper, rather than the level of the resultant taper or the charging policy as a whole, is misconceived. As seen above, a comparison of percentage increases in the amount paid is relatively meaningless. The PCP in question is the policy itself. The question ought therefore to be whether the application of a 75 per cent taper is discriminatory, irrespective of what the taper was before the increase.”

Turning to the human rights challenge, he said: “Following SH, I accept that being ‘severely disabled’ can in principle amount to an ‘other status’. However, the applicant in SH was found to be severely disabled by reference to the nature of the benefits she received, whereas the petitioner has no averments to that effect.”

He continued: “In the present case, if the petitioner is treated less favourably than a single person over 60 that is not necessarily because of any difference in their degree of disability but because of the difference in age; and, unlike SH, there is no suggestion here that the petitioner is treated less favourably because earned income is not taken into account in assessing the ability to pay. It is not sufficient for the petitioner to show that he is severely disabled; he must also show that it is that disability alone which has resulted in unfavourable treatment.”

Sufficient regard to duty

Turning to the failure to consult or undertake an adequate impact assessment, Lord Braid said: “The respondent now admits that it did not have sufficient regard to the public sector equality duty in reaching its decision to change the charging policy and in particular it admits that the EIA undertaken was insufficient to discharge that duty, having regard to the specific proposal to alter the level of taper.”

He concluded: “I will therefore grant declarator that the respondent failed to properly exercise its duties to undertake an adequate Equality Impact Assessment in terms of section 149 of the 2010 Act and the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 before implementing its PCP, but quoad ultra will refuse the declarator sought insofar as it refers to a failure to properly consult.”

Declarator was therefore granted only to the extent that the respondent failed to undertake an adequate EIA, with the remainder of the petition refused.