Disability Related Expenditure case - Judical Review - RW V RBWM 2023

This is only a quick review of the case, highlighting some of the important parts of the case. I have changed some of the language to make it easier to understand and read.

The original full case can be found here:

https://caselaw.nationalarchives.gov.uk/ewhc/admin/2023/1449#download-options

Claimant, 25 year old venerable adult who lives with a disability (Autism).Non Verbal, self harms when can't cope.

Funded for DP, mother managed

Issue relates to a charging cost claimed as DRE for a local support group. Noted in care plan. Charge of £80 per day includes transport and staff costs. Also £15 daily charge. Court has to decide is this  daily charge DRE (Disability related expenditure)?

Council try’s to argue, its a choice so not disability related. Cheaper ways to do this thus should be out of personal budget not DRE. Council keeps making different excuses, the council argues not DRE as part of personal budget and in Care Plan. So doesn’t make a difference.

(statutory guidance) Wellbeing - 1.9   Care Act  signifies a shift from existing duties on local authorities to provide particular services, to the concept of ‘meeting needs’ .

1.9   The idea of meeting needs recognises that everyone’s needs are different and personal. Local authorities must consider how to meet each person’s specific needs instead of simply considering what service they will fit into. Meeting needs also recognises that modern care and support can be provided in any number of ways, with new models emerging all the time.             

 It “necessarily depends on the claimant’s needs” An individual’s care plan should be taken as a valuable starting point for determining what constitutes DRE (§41, Annex C, Guidance); to assess it, flexibility is required .  The councils identified needs are clear from the care plan.  Of particular relevance is that:

“[he] needs support to develop and maintain personal relationships. “Questions asked of the activity organiser-

Council states that it would be unreasonable if the claimant chose to attend exorbitant or extravagant excursions which they would then be obliged to treat as DRE. 

Questions asked of the activity organiser-

Would he be able to attend and do no activities at all? No - The whole point of coming out with the group is to join in and learn how to work together as a team and enjoy the activities.

Could  he just attend and socialise without activities? The socialising during the day is done through the activity and learning to support each other.

Benefits to the person include - travel training, budgeting and  socialising.

One particular argument related to a bowling trip. It could be argued this is for everyone. But the activity organised by support group structured and designed for disadvantage people.

The council made a mistake in generalising the activity rather than looking at it specifically as mentioned in care plan.

Judge-  given that is arises from the claimant’s disability, a significant number of activities could be DRE.  The way the council decided to blanket-disallow them as not disability-related is wrong..  

 Council argued whether "Necessary" DRE

The judge-  what’s important is does it a rise from the persons disability. The power in the DRE regulations has as its main purpose the reasonable and fair assessment of the ways that we as a community can support people living with disability.  This is the approach the council must take. 

Other case law states  The starting-point in legal terms  is to consider the ordinary meaning of a word or phrase.” must be looked at within what the legislation says in part or whole. Other parts of the act may give further guidance.

Dictionary definition looked at: Oxford English - Necessary = needed for a particular reason.

Gives example of Zak internet use as per statutory guidance.

With regard to cost -  must be reasonable and not extravagant or disproportionate to the need it addresses. Must be viewed, rationally but also humanely. You don't have to always search for the cheapest possible way to meet the need and restrict oneself to that no matter what. Considering outcomes is what’s important.

Example given continence pads from NHS  it would usually make sense to source them there, "subject to supply issues in remote locations and so on (looking at whole picture is vital).

Must understand the history & connection between person and service.

From the organisers - His whole personality and confidence has changed and developed” [he] “has developed strong bonds with some of the other people” and “being with them has become hugely important to his life.”  it would be really difficult for him if had to attend somewhere with people he didn't know.

His Doctor stated “if he doesn’t visit daily to the  group, his condition becomes worse.  He spends his days stuck in his room with his blinds down and becomes depressed”.

Judge - Also must most consider Proportionality. ( is the balance right? )  Activity cost is 7.3% of the personal budget (£40.50/£556.45).  It is not 7.3% actually of the budget as it is additional to it. Thus it is better to compare that figure to the total budget to work out how much it is.  Standing back, I cannot see how this is unreasonable expenditure in proportion to the whole budget.    

Council did not seriously consider other options. Otherwise it would have concluded the benefits far outweigh the costs.

Statutory guidance says: That the local authority must look at the individual’s life broadly and carefully examine look at what’s  important for the person. The days when there were just a few number of standard models of care that the person had to fit into have gone.  The modern idea places the individual at the centre.  It asks anxiously about her or his need arising from the specific disability. It looks at whether there is additional expenditure beyond the care and support package.  It then asks whether it is relevant to the disability (“related to”) and reasonable.
 
Disability-related, is part of the care and support.  DRE should not be limited to what is necessary for care and support (§41, Annex C, Guidance).  Why does DRE exist as a specific separate category?  It is because the regulations and Guidance recognise that there may be additional expenditure that arises beyond the support and care package. 

With regard to The UN Convention states in clear terms that: Reaffirming the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without discrimination.  

Article 3 – General principles

The principles of the present Convention shall be:
a.      Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons;
b.      Non-discrimination;
c.      Full and effective participation and inclusion in society”
Article 19 - Living independently and being included in the community

 Recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:

Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community”

Judge - The DRE regulations has as its main purpose the reasonable and fair assessment of the ways that we as a community can support people living with disability.  This is the approach the council must take. .

The council where wrong in saying not a DRE