High Court Social Care Charging judgment
Proceedings taken on behalf of a 24 year old disabled person with Down Syndrome, challenging the way an English council (Norfolk) calculated the charges she had to pay for her social care and support have succeeded. The council’s new charging policy had significantly reduced the Minimum Income Guarantee (MIG – the minimum income a disabled person should be left with after the charge has been levied) that adults were could receive before being charged for care.
The court held that the policy was unfair, perverse and discriminatory.[1] The policy had a disparate impact on people who had more severe impairments (who had high care needs and significant barriers to paid work) compared to people with less severe impairments who were able to supplement their income with earnings from employment or self-employment (which is ignored for charging purposes). The policy was manifestly without reasonable foundation and contrary to the European Convention on Human Rights Article 14 (discrimination) and Article 1 of the first Protocol (enjoyment of possessions – ie income).
Many councils in both England and Wales have severely ramped up its adult social care charges. The case would appear to be applicable in Wales, as in England and on this basis many Welsh councils will have to make significant changes to their policies.
Although in Wales (unlike in England) there is currently a cap on home care charges of £100 per week, the process for assessing charges in both nations is similar – and in both nations earnings are disregarded: an issue that went to the heart of the proceedings. In Wales the ‘MIG’ is referred to as the Minimum Income Amount (MIA).
As we have noted elsewhere the £100 cap on charges in Wales has:
the perverse effect of reducing the charges for wealthy people but not for the poorest. Since poverty is the greatest barrier that disabled people face in their struggle to ‘live independently’ it is vital that the Government get this right. In terms of the obligation to have a rational policy that progressively realises the international human rights obligations of Governments,[2] such a policy appears to be the antithesis of what is required.[3]
To access the judgment R (SH) v Norfolk County Council and Secretary of State for Health and Social Care [2020] EWHC 3436 (Admin) click here.
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[1] An argument made in an earlier post – see Charging for social care campaign.
[2] See for example Article 28 UN Convention on the Rights of Persons with Disabilities.
[3] A rational ‘capabilities’ approach would presumably exempt people on means tested social security benefits before imposing a fixed upper limit – see for example Amartya Sen ‘Human rights and capabilities’ in Journal of Human Development ( 2005) 6 (2): 151–166.
Photograph of ‘Llanbedrog’ by Richard Jones -@lluniaurich
Posted 6 January 2021