Page 8 - Community Living Magazine 34-3

legal: charging policies
Tackling unfair charging policies

Although it is notoriously hard to challenge policies on financial The council also argued that people
tests, a judicial review has found against a council regarding how subject to the charging policy earning
income from employment were not in an
it assessed a person with severe disabilities, says Belinda Schwehr analogous position to severely disabled
individuals such as SH and were treated
differently because they varied in other
he use by local authorities of disproportionately, with no objective ways. The judge disagreed.
“affordability” as a principle in justification for the differential treatment. The council argued that, as SH’s higher
Tfinancial assessment and charging SH’s income from benefits was level of needs would result in higher
policies is misleading and disingenuous. “property”, which put her interest in that disability-related expenses (DREs) and
Appeals processes are wholly a matter income into the category of an article 1 these would be disregarded when her
of preference in each council. Most local first protocol right under the European charges were assessed, then this flexibility
authority officers are ill equipped to bring Convention on Human Rights (protection was the equivalent to the disregard of
public law expertise to bear upon of property). earnings for those able to work.
challenges to financial assessment The council argued that “severely The judge identified that the definition
outcomes that can have such a stultifying disabled” was not a sufficiently specific of DREs under the charging policy was
effect on people’s lives or even their status to qualify for protection from “not at all coterminous with the higher
willingness to accept services. discrimination under article 14. rate of PIP” and, furthermore, that DRE
However, the judge concluded that this was “harder to prove and claim than the
Discrimination against severe disability status could be defined precisely in terms blanket disregard of outside earnings for
In SH v Norfolk Council, the council’s of eligibility for ESA support and PIP in the those able to get them”.
charging policy was found to have enhanced daily living category. He added Consequently, he took the view:
discriminated against severely disabled that it would be best if, for charging “Neither the evidence nor the charging
people contrary to article 14 (protection purposes, it was compulsory to compare policy suggests to me that the DRE regime
from discrimination) of the Human Rights the result with that for less disabled reduces to any significant extent, let alone
Act, in taking the whole of a person’s people to see if there was an unjustified eliminates, what would otherwise be
income above the minimum income difference in treatment. differential treatment.”
guarantee into account when calculating The test of objective justification for
charges for social care. different treatment involves
SH, the young woman with Down The council’s position was that considerations as to whether, first, the
syndrome pursuing the challenge, was in because the policy was the difference is “a proportionate means of
receipt of both employment support achieving a legitimate aim” and, second,
allowance (ESA) in the higher level support same for everyone, there was the justification for the adverse effect of
group category and personal independence no difference in treatment. the rules is “manifestly without
payment (PIP) in the enhanced daily living reasonable foundation”.
and enhanced mobility category. This was quickly dismissed The council’s evidence focused on
She also had a package of care including austerity and demonstrated a conscientious
day services, overnight respite and some process of consultation and phased
community support, via a direct payment The discrimination was that the introduction of a less favourable charging
under the Care Act. proportion of earnings that she and other policy that included measures intended to
Her lawyers used the idea of severely disabled people with high care mitigate the impact on those affected.
discrimination in the context of another needs and significant barriers to work had However, the judge identified that these
human right. They said her status and the to pay under the charging policy was mitigation strategies were primarily
way that Norfolk’s charging policy treated greater than the proportion of earnings focused on supporting access to
her impacted that people who were disabled but not employment for affected individuals, a
on her life severely so were required to pay. mitigation that was not available to SH.
Less disabled people will have lower The council’s consultation and
levels of assessable benefit (they will not be consideration process had not identified
paid daily living PIP at the enhanced rate) or discussed the differential impact
and may have earnings from employment between severely disabled individuals
or self-employment that will be entirely unable to access employment and others
disregarded from their assessments. affected by the charging policy.
Policy The council’s position was that because
changes that the policy was the same for everyone, Alternative not considered
pushed up
social care there was no difference in treatment. This The council did not evidence ever having
charges was quickly dismissed by the judge on the considered the alternative approach
were found grounds that it is well established that a specifically suggested by the Care Act
to breach difference in impact can result in indirect guidance of setting a maximum
human discrimination, despite the same rules percentage of disposable income (over
rights being applied. and above the minimum income
8 Vol 34 No 3 | Spring 2021 Community Living www.cl-initiatives.co.uk