Administrative Court: Griffiths J,  EWHC 3436 (Admin), 18 December 2020
This is a carefully reasoned and lucid decision from Griffiths J on the application of Article 8 and /or A1P1 read with Article 14 ECHR. The claim involved a challenge to changes in charging policy by the respondent in respect of social care, the effect of which was significantly to reduce the income of the claimant, who had Downs Syndrome, because she was aged between 18 and 24, and to include her Personal Independence Payment (PIP) in the assessment of her ability to pay the Council charges. The claim also rested on the Equality Act 2010 but permission to argue a breach of the PSED had not been granted (this rather oddly in view of the conclusions reached by Griffiths J) and Griffiths J did not consider the claim of indirect disability discrimination contrary to the 2010 Act because it was accepted that it would not be made out unless the Article 14 claim was also and, if the claimant got home on the Article 14 claim, the Equality Act claim was unnecessary.
The claimant argued that the council’s policy discriminated against severely disabled people contrary to Article 14 ECHR. It being common ground that the decisions fell within the scope of A1P1, Griffiths J accepted that severe disability was a status protected by Article 14 ECHR, being (§58) “exactly the sort of ‘personal characteristic’ which has always been recognised as protected from unjustified discrimination”, further that the boundaries of “severe disability” could be set by reference to entitlement to specific benefits (here Employment Support Allowance with the enhanced disability related premium and PIP daily living component at the enhanced rate) without falling into the “illegitimate bootstraps argument” referred to by Ouselely J in C v Secretary of State for Work and Pensions  1 WLR 5425.
Griffiths J went on to follow the approach of Lady Hale in AL (Serbia) v Secretary of State for the Home Department  1 WLR 1434,  UKHL 42 §§24-25 by eschewing any emphasis on the identification of an exact comparator for the purposes of identifying discrimination, instead asking whether “differences in otherwise similar situations justify a different treatment”. He accepted that the council’s policies impacted more severely on those such as SH who were, by reason of their disabilities, required to expend more of their income on council assistance than others had to, those others also being more likely to have earnings from employment or self-employment which would be entirely disregarded from their assessments. The council’s argument that the application of the same policy to all could not constitute discrimination was rejected on the basis that Article 14 applied to indirect as well as to direct discrimination and no detailed statistical evidence was necessary to demonstrate the claimant’s case that the charging policy affected her disproportionately. According to Griffiths J (at §73):
The situation of the severely disabled (with high needs-based assessable benefits and no earning capacity) and everyone else being charged under the Charging Policy is analogous because they are all receiving Council services covered by the Charging Policy. Their treatment is different because the Charging Policy means that a higher proportion of SH’s earnings (and of other severely disabled people in the same position) is assessed than theirs, and the result is that she is charged proportionately more than they are.
Finally, as to justification, Griffiths J accepted that the applicable test was whether the council’s policy was “manifestly without reasonable foundation”, though (§80) “What has to be justified is not the measure in issue but the difference in treatment between one person or group and another” (citing A v Secretary of State for the Home Department  UKHL 56  AC 68 §68, per Lord Bingham. He observed that the council did not “appear [to have] intended, or specifically decided, that it should rob Peter to pay Paul, in the sense of deliberately imposing greater burdens on the severely disabled who cannot work for money, in order to provide more support for the less disabled who can”. This, however, was the impact of its decision to spend £1 million of the £5 million expected savings on measures to increase access to employment for those who, unlike the claimant, were not too severely disabled to achieve it. None of the material before the Judge indicated that the council had “focussed its attention on the differential impact on the most severely disabled which is now complained of”, specifically, that arising from their lack of access to earned income, which was “overlooked and not considered or consciously justified at all”.
The council claimed that the purpose of its charging policies was to (1) “apportion the Council’s resources in a fair manner”; (2) “encourage independence”; (3) “have a sustainable charging regime” and (4) “follow the statutory scheme” and drew attention to the shortfall in its adult social care funding of almost £39 million over the three years 2019-2022. Griffiths J found that the first of these appeared to “beg the question somewhat; because the case against the Council is that the impact of the Charging Policy is unfair” (citing R (TP and AR) v Secretary of State for Work and Pensions  EWHC 1116 (Admin),  PTSR 2123 §53;  EWCA Civ 37,  PTSR 1785, §§170-172), and that (4)was “also is an imperfect fit” because the Secretary of State’s Care and Support Statutory Guidance “specifically warned against making decisions based only on what the statutory scheme permitted” (§8.47) stating instead that councils “should” consider setting “a maximum percentage of disposable income”, over and above the minimum income guarantee, “which may be taken into account in charges”:
- “It does seem to me that the differential impact of the Charging Policy on the severely disabled is manifestly without reasonable foundation. If the same level of charges overall is raised, the Council’s aims of funding and encouraging independence and making its charging regime sustainable will be met to the same extent. These aims do not justify the discrimination in this case or make it proportionate. The Guidance warns against the approach adopted by the Council (… [and] suggests an alternative, which could be used to raise the same amount of revenue … There is no relationship between the aims identified and the specific discriminatory impact in issue at all. The discrimination is not proportionate to those aims. It is not reasonably linked to them.
- No real effort has been made in argument to justify the discriminatory impact of the Charging Policy on the severely disabled … That impact was a perverse and unintended outcome. The differential impact is not rationally connected to any of the aims relied upon. A less intrusive measure was suggested by para 8.47 of the Guidance, which was not considered at all. There may also be other ways of achieving the same balance between cost and revenue. The severity of the differential impact on SH and those like her is serious, as demonstrated by the figures in para 16 above. There is nothing she can do to limit it. It directly contradicts one of the Council’s stated aims, to encourage independence. She will have less money for independent activity, such as social activity. Any reduction in her use of Council services will directly impact her independence, for example by reducing her use of the personal assistant.
- Testing whether the Council’s case on justification is manifestly without reasonable foundation against the four questions in Bank Mellat v HM Treasury (No 2)  UKSC 39,  AC 700… I answer as follows. The objectives identified are not sufficiently important to justify discriminating against the most severely disabled as compared with the less severely disabled in order to advance it. The discriminatory impact is not rationally connected to the objective at all. A less intrusive measure was suggested by the Guidance but was not considered. Balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objectives, the discriminatory effect is irrational, unnecessary, and wholly out of proportion.”
Claimant: Zoe Leventhal and Emma Foubister, instructed by Leigh Day
First Defendant: Jonathan Auburn and Zoe Gannon, instructed by NP Law
post modified 15 January 2022