Charity CASCAIDr publishes legal advice on council care charges following Norfolk case

Charity CASCAIDr (which stands for Centre for Adults’ Social Care – Advice, Information and Dispute Resolution) has published legal advice regarding the impact of the ruling in the case SH v Norfolk County Council [2020] which relates to care charges imposed on severely disabled people by local authorities.

CASCAIDr, represented by Leigh Day, sought legal advice from the two barristers who, together with Leigh Day, represented SH in the case against Norfolk County Council: Zoe Leventhal and Emma Foubister of Matrix Chambers. By publishing key points from the advice, the charity hopes to help others who may be in a similar situation to the claimant in the Norfolk case and may be experiencing unlawful discrimination regarding their care charges.

The case against Norfolk County Council involved a 24-year-old woman with multiple disabilities, known as SH, and her mother, who took the council to court on the grounds that their charging policy for care was unlawful. SH, who could not work due to her disabilities, argued that Norfolk County Council wrongly treated her the same as other people affected by the policy but who were able to do paid work. SH and her mother argued that under the council’s care charging scheme so much was taken from her benefits to pay for her care that it left her with very little for social activities and to support her independent living.

The legal advice obtained by CASCAIDr states that councils with similar charging policies to Norfolk may be unlawfully discriminating against individuals like SH. In particular, policies which reduce the Minimum Income Guarantee to the statutory minimum, choose not to disregard certain disability benefits, have poorly functioning schemes regarding calculation of Disability Related Expenditure (DRE) and which do not consider alternative approaches, are likely to be discriminating against severely disabled people. While other councils’ policies are not automatically unlawful as a result of the decision in SH’s case, other local councils must consider the ruling and examine whether their policies could be discriminatory to ensure they are fulfilling their Public Sector Equality Duty and that they are not breaching the Human Rights Act. If the policies are discriminatory they must take steps to correct this.

The advice sets out the impact of the decision in the Norfolk case and explains how different aspects of care charging policies might be unlawful.

The judgment in the Norfolk case found that there was a difference in treatment between, on the one hand, the severely disabled (with needs which result in higher assessable benefits and no access to earnings from employment or self-employment) and, on the other hand, everyone else receiving council services covered by the Charging Policy. Their treatment was different because the Charging Policy meant that a higher proportion of SH’s income (and of other severely disabled people in the same position) was assessed as available to be charged than theirs, and the result was that she was charged disproportionately more than they are.

Belinda Schwehr, CASCAIDr's CEO, welcomed the Advice. She said:

“I believe this authoritative advice will be useful for people in many different situations, if paying council charges for care, and for those who manage other people's money.

“The advice was commissioned so that it can be referred to when such individuals are engaging with councils as to their own charges under local policies - in most cases, policies that are very similar to that which was found to be unlawful in Norfolk.

"It will enable the wider public to take action, from a well-informed perspective, whether as individuals or groups, and ensure that local authorities remember that they are accountable to a legal framework, even when operating under discretion, and in difficult circumstances.

“It will undoubtedly help bring about changes in most councils' policies, whatever they think of the Norfolk case itself. It may dissuade some councils from enforcing a number of clients' charging debts. It may even lead to some refunds - refunds to people whose situations mean that they need to keep every single penny of income that they possibly can.

“We would like to thank everyone who donated to our CrowdJustice page to fund the legal advice. This remains open for further work of this kind, in future.”

Leigh Day solicitor Carolin Ott said:

“Our clients are keen to ensure that local authorities do not bury their heads in the sand following the SH v Norfolk County Council case. Although the ruling did not mean that similar policies are automatically unlawful, it is clear from the comprehensive legal advice obtained by CASCAIDr that local authorities should, in order to fulfil their legal obligations, be reviewing their policies on care charges and DRE in light of the judgment to ensure that they are not unlawfully discriminating against severely disabled people.”