Page 9 - Community Living Magazine 34-3

legal: charging policies

guarantee) that may be taken into
account in charges for everyone or for
severely disabled people.
The judge highlighted that paragraph
8.47 of the Care Act guidance said councils
“should” consider this approach. There
has to be a very good reason for departing
from guidance, and the exhortation had
been entirely overlooked, it seems.
He was sympathetic to the difficult
position facing the council, but quoted
from caselaw: “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 objectives identified are not
sufficiently important to justify
discriminating against the most severely Protest against cuts at Norfolk County Council in 2017; the judge was sympathetic about the council’s
disabled as compared with the less finances but said the effects of its policy were “irrational, unnecessary and wholly out of proportion”
severely disabled in order to advance it.
The discriminatory impact is not rationally policies ever justify differential Ombudsman’s office cannot possibly deal
connected to the objective at all. treatment – so other councils’ similar with every single charging complaint that
“A less intrusive measure was suggested policies are presumptively invalid? will be made.
by the guidance but was not considered. l How will a retrospective correction We are interested in the notion of
Balancing the severity of the measure’s of these policies affect people’s family members’ contributions to the
effects on the rights of the persons to current charges? lifestyles of their loved ones counting as
whom it applies against the importance of DRE, as used to be the case, because of
the objectives, the discriminatory effect is Could you claim? the concept that the contribution was a
irrational, unnecessary and wholly out We think that people who have been loan for necessaries.
of proportion.” charged over the past year or two on the We suspect that policies that have one
basis of a Norfolk-style policy could claim standard DRE allowance for all could be
Implications restitution of unlawful charges. discriminatory because, while they allow
Norfolk has already resolved to make an We normally require fees for all for evidencing of higher amounts, that is
initial amendment to the charging policy charging challenges at CASCAIDr but we going to be all the harder for those with
for non-residential care for people of will be offering a special discounted severe disabilities.
working age, setting a minimum income service to those who do not know A council’s approach that an activity or
guarantee of £165 per week, and using whether their council’s policy is like purchase is a “lifestyle choice” as opposed
discretion to disregard the enhanced daily Norfolk’s in the sense required to make it to a necessary cost reasonably related to
living allowance element of PIP. worth taking further advice. their disability is in our sights. We’ll be
The Department of Health and Social looking at the typical rejection of DRE
Care and the Association of Directors of costs without consideration of human
Adult Social Services are also taking legal The approach that an activity rights jurisprudence that refers to the
advice as to what to do about this case. or purchase is a ‘lifestyle concept that leisure and recreational
The obvious aspects of the case that activities can sometimes be the only way
require attention are these: choice’ as opposed to a in which a disabled person is able to
l If a council does not take the full necessary cost related to develop their personality within society,
amount of PIP-enhanced daily living into as provided for by the scope of article 8
account as income for assessing adult disability is in our sights convention rights. This is because the
social care charges, will that be a way of more seriously disabled the person, the
mitigating discrimination? more likely that will be the case.
l Will higher standard levels of DRE for We are going to go to the barristers who Our crowdfunding page for the advice
those who get the benefits that put won the case to see what they think described is on Crowdjustice (www.
them into the category of severely about the implications of the case and crowdjustice.com/case/disabled-and-
disabled do the job? publicise the results. done-over), and we hope that the
Our enquiries will cover typical charging
l Can a council focus on a special local policy approaches, their discriminatory community of people interested in
Roger Blackwell/Flickr l Can a good decision-making process effect, the precedent effect of the Norfolk inform and enforce better engagement
buffer for the severely disabled, and
disability will support our campaign to
take the statutory minimum income
case and the most effective approach to
guarantee for the rest?
with these issues. n
l SH v Norfolk Council: www.bailii.org/
further litigation, since the Local
ew/cases/EWHC/Admin/2020/3436.html
before changes are made to charging
www.cl-initiatives.co.uk Government and Social Care Community Living Vol 34 No 3 | Spring 2021 9