Equality Act and local authorities – beware policy pitfalls
A key case relating to the Equality Act (Eq Act) and community care provision has been heard by the Supreme Court with judgment handed down in January. Although this case also evoked Scottish legislation relating to (Social Work (Scotland) Act 1968) (the 1968 Act) in this article we are focusing on the Equality Act implications.
The facts of the case
The case related to charges for community care services provided by Glasgow City Council (the Council) to Andrew McCue, a 27 year old man with Down's Syndrome who is disabled within the meaning of section 6 of the Equality Act. Mr McCue had a support plan developed over a number of years providing him with non-personal care outside of the home i.e. a number of activities, and respite care for carers. The appellant in the case was his mother, with whom he lives, Terri McCue. Under the 1968 Act the Council had a duty to:
- Provide assistance as appropriate in kind or cash for the purpose of promoting social welfare;
- Such assistance could be subject to full or part repayment as considered reasonable with regard to the means of the person receiving that assistance; and
- That repayment should be limited to what is practicable for the person to pay.
In addition, in determining how to assess the extent of a person's income and assets, there are exclusions for certain sums as part of that assessment. In this case, of the Disability Living Allowance that Mr McCue received a proportion of the care element and the whole of the mobility element was agreed to be disregarded from his income. The income that he did receive via various social security payments exceeded the minimum income threshold applied by the Council and therefore they considered that charges could apply.
The Scottish Guidance on this point encourages local authorities to be inclusive with these expenses to ensure such expenditure is disclosed. The Council has published its own policy document, following the approach of the Scottish Guidance, which covers charges for non-residential services. This includes the assessment of charges against a taper formula to share the charges between the service user and the Council. Expenses to be considered included "disability related expenditure" for which the Council had discretion to include or not on the basis of what was a practicable amount for the service user to pay for the service. Seemingly this provides a wide discretion for the Council.
The appellant's case was that when the Council was determining how much they should charge Mr McCue for these services, should have taken into account the disability related expenditure that Mr McCue had incurred. These expenses are listed in the judgment but included:
- Gas and electricity at an increased usage as Mr McCue needs his house heated to a higher temperature than the standard and he spends most of his time at home due to his disability;
- Laundry and replacement of bedding and clothing linked to the use of creams for a dermatological condition;
- Alterations of clothing due to standard fit not being appropriate for him, and replacement of footwear on an above average rate due to wear and tear from his hypermobility and gait; and
- Attendance of specialised clubs for social activities appropriate for his disability, and for a support worker to attend music concerts with him so he could engage in this as a social activity.
As a result the appellant said that Mr McCue's income fell below the minimum threshold when these items are taken into account and he should not be liable for any charges. The Council told the appellant that they only agreed to deduct costs related to the clothing and footwear costs at (3) above. The Council said only this head was a "disability related expenditure", and the others were not "essential or necessary expenditures relating to disability such that application of discretion is warranted in the circumstances". The Council said that the support plan covered meaningful day opportunities and respite breaks for carers, and that the choice to spend on additional activities was Mr McCue's choice.
A long complaints process took place with the appellant refusing to pay the charges. The appellant then commenced judicial review proceedings in May 2019. This raised the argument that the Council had discriminated against Mr McCue under the Eq Act.
Equality Act issues
The Council said they had not discriminated pursuant to the Eq Act and refused to apply the expenditure on the basis that it (i) did not relate to disability (ii) items that were rejected but related to a disability had a state benefit in place to cover their cost and (iii) some items were considered to be discretionary spending.
Once proceedings were commenced the Council changed their position on expense (2) above as the appellant filed medical evidence to show that the dermatological condition was related to Down's Syndrome. As a result this head was deemed to be deductible "disability related expenditure" and the monthly charges were adjusted.
The provisions of the Eq Act which were cited in this case were:
- s. 29 requires a service provider (here, the Council) to not discriminate when providing a service and has a duty to make reasonable adjustments.
- Pursuant to s. 20 reasonable adjustments includes taking steps to avoid any disadvantage that the disabled person may have in comparison to others who are not disabled.
- s. 15 states that such discrimination includes treating the person unfavourably because of something arising out of their disability and the service provider cannot show that the treatment is a proportionate means of achieving a legitimate aim.
The Supreme Court held that "disability related expenditure" is not a statutory term but instead is used in the guidance to indicate when expenditure incurred by an individual is so "unavoidably imposed" on him as a result of his disability that the local authority consider that "it is not reasonably practicable for him to use the resources required to meet that expenditure to pay the local authority [charges]". The Court found that the welfare benefits paid to Mr McCue leave him and his guardians with the discretion to choose how they are spent and the Council is entitled to take them into account when deciding how much it was "practicable" for Mr McCue to pay. The Court agreed with the heads that the Council had taken into account, that is (2) and (3) above, and that those costs were different from and additional to that covered by the support plan.
As to the question of whether there had been unfavourable treatment under s. 15, the Court said that the relevant treatment is the Council's decision as to whether Mr McCue should be charged anything for the services, and what deductions should be made in calculating his available means and calculating what it was practicable for him to pay. The Court said that the Council's policy was in fact favourable to disabled persons, in that the Council has the scope to take into account a broad range of practically unavoidable costs which a disabled individual would have to bear, over and above non-disabled persons (who would also be charged for community care services). The failure to be more generous was not held to be unfavourable treatment.
As to the Council's duty to make reasonable adjustments under s. 20, it was held to be possible for the Council to be in breach of this even though they had not discriminated against Mr McCue under s. 15. The failure to make reasonable adjustments applies to both direct and indirect discrimination. In this case the Court found that as the analysis relating to what is "disability related expenditure" would only apply to a disabled person and therefore is a distinct practice, there is no comparison to make against the practice as it applies to non-disabled people. As a result, the Council were not in breach of s.20.
The appeal therefore did not succeed and the Council's charges levied on Mr McCue were valid.
This case works through the intricate and potentially broad application of discrimination and making reasonable adjustments under the Eq Act. This case certainly does not provide local authorities with a green light to levy such charges as they wish, but demonstrates a clear requirement to ensure both the in-house guidance and practices undertaken are compliant with the Eq Act. The judgment shows that there are plenty of pitfalls for local authorities in how they administer similar schemes. All those involved with the planning and implementation of such policies should ensure that careful consideration is given to the potential arguments should the policy or practice be challenged.
 National Strategy and Guidance on Charges Applying to Social Care Support
 McCue (as guardian for Andrew McCue) (AP) (Appellant) v Glasgow City Council (Respondent) (Scotland)  UKSC 1 para. 24