Activities are more than a choice

Disability-related expenditure should not be restricted to what is necessary for care and support, and a person’s own ambitions should be taken into account, reports Belinda Schwehr

Girl kicking football on pitch

A high court decision has obliged councils to reconsider their approach to disregarding disability-related expenditure (DRE) from people’s incomes.

The case, as the judgment states, “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”.

RW is an autistic man whose Care Act personal budget was converted into a direct payment to meet his assessed needs. As part of his care plan, he attended a social and life skills group three times a week.

He paid to attend from his personal budget but needed to meet an additional charge for activities (around £15 per session). RW requested the council consider this cost to be DRE and therefore disregard that sum from the total of his available income for charging purposes.

The council refused. It suggested that RW “chose” to attend these activities and there were cheaper ways to have social interaction and, alternatively, that such expenditure was part of his “care and support” and should come out of his personal budget.

RW’s stance was that, without the activities, there would be no point in attending. The activity provider confirmed that the purpose of attendance was engagement in particular
team-based activities to develop his skills to lead an independent life.

The case raises important questions of principle about our collective duty towards those who live with disabilities that make their daily life more difficult

Both RW and a staff member gave evidence about the strengthening of RW’s confidence, social bonds and wellbeing.

The judge divided the legal issue into three parts, which were whether the costs:

  • Were capable of being seen as disability related
  • Were properly considered regarding whether they were necessary and reasonably incurred
  • Could be ignored as DRE because they had to be discharged from his personal budget.

The judgment steered clear of the merits of the decision on whether every single activity cost was or was not DRE; Judge Dexter Dias KC considered only whether the council’s decisions were lawful.

He applied the Care Act 2014 and the Care and Support (Charging and Assessment of Resources) Regulations 2014, citing the guidance, which stated “what is disability-related expenditure should not be limited to what is necessary for care and support’’.

The judge found the activities were undoubtedly capable of being covered by DRE and the council’s all-or-nothing approach was flawed and in breach of the regulations.

The argument that because expenditure is disability related then it automatically should come out of formal care funding was also rejected.

It was clear that there was a category of private expenditure that goes beyond what is necessary for care and support and this category underpins the role of DRE when determining what is a reasonable charge.

Consideration of the scope of DRE cannot be limited to what a care planner regards as necessary to meet care and support needs. Councils must recognise that there may be additional expenditure that arises beyond the funded services or budget. While these are paid for with an individual’s own money, they may meet eligible needs.

The council argued that “cheaper” options were open to RW so the expenditure was not necessary but his own choice. The judge considered the relevance of the word “necessary” as the DRE regulation does not use this term but the word “required”.

However, the judge saw that “necessary” was used in the guidance. He noted it was broadly synonymous with “required” but had shades of meaning.

Its appearance in the guidance was to be interpreted in the context of the surrounding provisions about charging and the two DRE conditions mentioned in the guidance: that the expenditure is directly related to the disability; and that the additional cost is reasonable.

The judge favoured the “natural and ordinary meaning” of necessary after considering several dictionary definitions.

The Oxford English Dictionary definitions include “needed for a purpose or a reason”; the Cambridge Dictionary’s is: “needed in order to achieve a particular result”. These were contrasted with the Merriam-Webster definition, which includes examples with a higher degree of essentiality: “inescapable, logically unavoidable, compulsory”.

The judge concluded that necessary here meant “needed to achieve an objective” – that objective being to develop and maintain personal relationships and achieve autonomy. It could not mean that the person’s expenditure had to be the only or only logically necessary way of achieving the objective.

DRE cannot be limitless, extravagant or exorbitant, the judge said but, in terms of reasonableness, while value for money is important, councils must base decisions on the person’s intended outcomes.

It would “be wrong to consider that a cheaper alternative must always be chosen irrespective of the wider implications and context beyond the bottom-line cost. There must be a fair balance struck and an evaluation of the trade-offs.”

He accepted that the council had evidence that not attending the sessions would be detrimental to RW’s wellbeing; insufficient regard had been paid to that consequence and decision-making must not ignore a person’s own “ambitions”.

The judge considered whether the costs were disproportionate. The evidence that the cost represented 7.3% of the funding provided informed his implicit conclusion that no authority could defensibly regard that as unreasonable expenditure in relation to the whole budget.

He concluded that the local authority had made a public law error and quashed this decision, directing it to make a new one.

The council had not considered relevant issues – the adverse emotional impact on RW, in addition to his social anxiety, wishes and feelings, autonomy and choice.

Instead, it had given “disproportionate, excessive and unreasonable weight to financial considerations and did not consider the limited cost of the activities compared to the total personal budget”.

It would be wrong to consider that a cheaper alternative must always be chosen irrespective of implications and context beyond cost

Undue emphasis had been put on costs without proper consideration of the effects on RW, who needed the support of the community to live independently and autonomously, in line with his UN convention rights.


RW v Royal Borough of Windsor and Maidenhead [2023] EWHC 1449 (Admin). 

SH v Norfolk County Council [2020] EWHC 3436 (Admin).

Comment: guidance should be issued to reiterate ethos of Care Act

Councils, the National Association of Financial Assessment Officers and the Local Government and Social Care Ombudsman should take note of this exploration of the scope of and rightful approach to disability-related expenditure (DRE).

In practice, they should issue guidance to councils regarding internal complaints, to charging officers and within ombudsman case decisions.

Authorities cannot simply say: “It can only be expenditure where there is virtually no choice” nor argue “if it’s not mentioned in the care plan, it can’t have been that important and therefore it can’t be DRE”.

That should stop a worrying direction of travel that we have noticed increasingly since the SH v Norfolk County Council decision in 2020 on discrimination in how charging policies were applied.

The judge’s approach should provide fresh hope to those seeking to use the Care Act in the way in which it was intended to operate.

The judgment states: “The entire ethos of the Care Act 2014 is finally to place the individual front and centre of this decision-making process. It requires that their wishes and feelings, while not being determinative, are taken seriously… 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.”