Lessons from the Norfolk Social Care Judical Review

 

Note: i am not a legal expert, but have an interest in such cases. These notes are based on my understanding and reading the case files ( below). It is not exhaustive. I am sharing it as others in similar fields may find a breakdown of some of the main points of interest.

The actual case was taken under Human Rights Act, European Convention of Human Rights and Equality Act in that a cut to the  budget, affected right to peaceful possesion of property (art1, money) and discrimination (art 14,  was treated less favourably).

The person had no income and could not work. She relied on benefits and welfare (ESA (enhanced disability, PIP and Direct payment).

The authority implemented a increase to charges under the Care and Support Regs under Care Act. The relevant parts of statutory guidance where also looked at particularly sec 8.46 need to consult, and 8.47 consider the effects by taking the max allowed of disposable income. Annex c  of guidance was also mentioned regarding treatment of income - people should retain enough to manage.

Previously council had accepted a minimum income gurantee (Sec 7) in excess of the Care Act requirements. This was reduced twice and was to be reduced again.

One of the arguments used was under 8.46 above. "The Government considers that it is inconsistent with promoting independent living to assume, without further consideration, that all of a person's income above the minimum income guarantee (MIG) is available to be taken in charges."

Another argument was council started taking in to account the PIP living ammount in charges MInimum income gurantee - not fair if severly disabled

There was much discussion if it was discrimination and wether it passed the test for it to be so. (Based on case law)- it was.

Of particular note that the court stated it didnt matter that the discrimination was across everyone who was disabled, but this effected the severaly disabled more and this was relvant indirect discrimination-( see Equality impact below).

Of relvance quote from previous case law that severity of disability and additional costs due to these are relvant "… a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group."

Also of imprtance -(DH v Czech Republic (2008)-
they failed to make equivalent provision in relation to the severely disabled, whose needs are more costly."- regard to including PIP living.

The court also noted that the Disability Related Expenditure did not actualy reduced any costs for person. As they had to be paid for and claimed back.

The courts mentioned the council in all its consultation did not consider the differing impact on different levels of disabled people those with severe and those who werent (who could possibly have done some work). There was also much disatisfaction noted in the consultation by users.

There was an alternative in the guidance instead of taking maximim income they could have taken a percentage as per 8.47 guidance which states it should consider. They didnt consider this.

The council showed more concerns with balancing their books. Altetrnatives werent considerd even though atrempt was made to look at these. Defeated in council meetings.

Saving money for the council is acceptable aim but has to be balanced under proportionality beetween aims achieved and chosen.

The charging policy is in how it treats severe disabled people manifestly unfair. No real effort was made to look at the differnce effects for severly disabled. It actualy goes against the councils aims of increasing independance. Less money means less independance to go out and do stuff.

Actual case can be found here: https://www.bailii.org/ew/cases/EWHC/Admin/2020/3436.html

#Norfolk #judicialreview #socialcare #adass #careact #discrimnation #minimumincomegurantee #personalbudgets #poverty #sevearlydisabled