How councils are failing to amend social care charging systems deemed unlawful by High Court

By Belinda Schwehr, CEO, CASCAIDr

In SH v Norfolk County Council [2020] EWHC 3426, the High Court decided that Norfolk’s charging policy unlawfully discriminated against severely disabled people in the enjoyment of their benefits income (a human right).

At CASCAIDr, we knew that most councils were exercising Care Act charging discretion, in very similar ways. Shortly after the judgment, in January 2021, we wrote to all councils’ Monitoring Officers, (lead governance officers with mandatory responsibilities), to ask them what their stance was on their own policies, including some wider concerns about disability related expenditure policy and practice.  .

After the time for appeal to the Court of Appeal had expired in the Norfolk case, CASCAIDr turned to crowdfunding, to obtain legal advice from the barristers who had won the case for SH, with the intention of making that advice public.

We campaigned under the banner ‘Reversing the Charges – Disabled and Done Over?’. We raised sufficient funds and we have since put that advice up online, with our own thoughts in addition.

This means that people can find it, read it, and demand engagement upon it, from finance officers, legal departments, Monitoring Officers and complaints officers, all over the country.

As many disabled people will know, councils’ adult social care charges have been increasing for several different reasons, as central government’s money for funding care has decreased markedly over the last decade.

Transfers from one type of benefit to another have sometimes triggered a loss of a disregard that had always been provided for non-council-funded night-time needs for people on attendance (AA) allowance or disability living allowance (DLA). Sometimes, the benefits changes have generated higher income for the person. Whenever it’s been more, it’s been promptly taken straight back by councils by way of charges. It’s dawned on people that an increase in their benefits does not mean an increase in their welfare or income, but only serves to fund social care services – even if they receive no more of those services than they did previously and very often, face cuts to those services too!

Shunting costs to disabled people

Our work has led us to conclude that the cost of being disabled has been steadily nudged up and towards disabled people and their family carers, over a five-year period, by all these devices:

• Giving up allowing people to keep any significant amount above the minimum income guarantee (MIG), after a couple of years of ‘generosity’.
• Giving up any social value-based principle of only taking a maximum percentage of people’s overall income towards care, regardless of how much one receives, or ceasing to allow a disregard of a percentage of people’s disability benefits, automatically, or the taking of a maximum percentage of the cost of everyone’s budget up to their individually assessed maximum disposable income.
• Giving up allowing people to keep the enhanced rate of personal independence payment (PIP), as was required when the person received DLA/AA, for the concept of meeting any night-time care costs privately. It is unlawful to take it for people still on those benefits by reference to the Carton case from 2001, but we have found policies that do not offer even that.
• Cutting out the delivery of types of services that were previously provided for free, or charging for them anew and at full cost to ‘incentivise’ people to spend their own money privately, despite criticism from the Local Government and Social Care Ombudsman.
• Embracing full-cost charges (‘you pay what we pay, subject only to the MIG and mandatory disregards’),
• Making access and transport costs to all leisure and inclusion activities something that one ‘chooses’ to do, and thus pays for privately, albeit hiding the possibility of disability related expenditure (DRE) offsets in policies, online, not making a ‘standard’ disregard automatic at all and not mentioning the need to ask for it on the actual forms.
• Treating everyone’s MIG allowance, and often a standard DRE across all those on disability benefits, as ‘able to cover’ whatever is asserted as ‘extra’ individual expenditure, without ever saying how that could ever be true, for all people claiming.
• Treating anything spent by relatives on propping up the needs of their incapacitated loved one as a gift, instead of as a sum of money that the individual is liable to repay under the Mental Capacity Act as a necessary, and as such, potentially disability related expenditure, itself.

Norfolk decision is not precedent

In the light of the outcome of the case, the National Association of Financial Assessment Officers and Association of Directors of Adult Social Services, we believe, sought legal advice from two QCs, Nigel Giffin and Jonathan Auburn.

Our own counsels’ advice online makes it clear that the Norfolk case, and the principles it sets out, do not set a precedent that makes all similar policies automatically unlawful. That is because unlawful discrimination (in a human rights context and within UK law itself) turns on absence of justification, so that such absence needs to be asserted and proved by other challengers, in relation to local policies. Judgments bind only the parties to the case, and it is at least open to councils to say ‘You will have to make us accept this principle’ and risk a different judge coming to a different conclusion.

If a public body has not been challenged, its decisions are lawful until found not to be so. Whilst it is unedifying, to say the least, for a council to say that it is not going to accept that a High Court case applies to its own situation, unless someone makes it concede, we can see that having 2 QCs’ advice, presenting the reasoning in the case as wrong obviously helps sector leaders’ consciences. It also saves them quite possibly from findings of fault by the LGSCO, who can decline jurisdiction in cases where the law is key and is not necessarily settled. In addition, it saves the council sector (some might say the country?) a small fortune – approximately £150m, if Norfolk’s own pay-outs to clients for excess charges are any measure.

Most councils – who have no excuse or means to distinguish their own approach to charging from Norfolk’s, so would expect to be found to have acted unlawfully in just the same way, if challenged – are saying that the judge misunderstood the regulations , and that the content of those regulations explains the percentage differential that so offended the judge’s view of what was justifiable.

This is the wording councils appear to have been advised to use (identical even as to the punctuation!):

‘The decision in Norfolk was incorrect’

“The decision in Norfolk was incorrect and ought not to be followed, and that whilst the 2014 Charging and Assessment of Resources Regulations remain in their present form, authorities are entitled to adopt policies of the same or a similar nature to that discussed in the Norfolk case.”

Councils could be forced to explain their defence, by anyone with a legal team that would write a proper pre-action letter, if those councils wanted to protect themselves in costs to a legally-aided client, so this does not seem respectable to us. Fortunately, NAFAO has shown us the QCs’ opinion on terms that we can share it with organisations working with us. We are willing to share it with anyone who is able to offer some practical and concrete support to CASCAIDr, in recognition of the fact that we have increased public awareness on the strength of donations only.

We think that there’s a duty at least to consider the legality of local policies from the perspective of the decision, and that is supported by all counsel to date. But if councils are effectively saying ‘You need to advise anyone thinking of challenging us that they will need to go to the Court of Appeal, because any other losing council has a good run on an appeal’, that will obviously deter many individuals and groups (and law firms) from engaging further.

How councils defend charging policies

Some councils are saying they are reviewing their policies, and regularly make changes – but are in no particular hurry right now. We will be interested to see whether they admit that changes made have got anything to do with Norfolk principles, and offer any refunds.

Some are spuriously defending their policies – muddying the waters by saying that they do this or that and then when one actually looks, one finds out that it’s not the case, or not accessibly explained.

Yet others are saying that they’re off the hook on the basis that whilst the MIG is an amount set by government, the local MIG is a tiny bit more than the minimum. This is because the council has always set its MIG by reference to basic income support levels plus disability and enhanced disability premiums, the latter having been uprated in benefits terms, and then added 25% to that amount, whereas the government has departed from that same formula for several years and let the buffer shrink a little. We do not think that there is any hope at all of the few pounds’ difference that that makes, saving a council from the same fate as Norfolk.

The best councils are actively defending their policies by saying that they disregard the enhanced level of daily living PIP, (£29.60pw) whether or not people have night-time needs that they need to spend their income on. This is a way of ensuring that the percentage of a person’s income being taken for care charges, at a severely disabled person’s level of benefits income, is not then so very different from the percentage of a less disabled person’s benefits income, regardless of any comparison with hypothetical people with disregarded earnings.

A difference in contribution may seem intuitively justifiable to the public, we suspect, by reference to the fact that more severely disabled people would be assumed to be getting more care than others, and therefore get more benefits income to pay for it – the thrust of all charging systems being to treat one’s level of benefit income as key or as at least relevant. In fact, two people on different benefits levels could easily have the same sized care budgets, but the one on higher rate benefits would have to pay 11% more of their income than would a person on lower rate benefits. The percentage differential, found to be discriminatory in the Norfolk case is merely exacerbated by the mandatory earnings disregard in the charging framework but that arbitrary and unavoidable 11% differential can and should be smoothed out by the exercise of discretion, in light of ongoing wellbeing, human rights and equality functions, it is suggested. Furthermore, the DHSC sets the MIG, annually, so there is responsibility there, to be resolved in a future case.

Many councils do not offer that small disregard because PIP is not divided into day and night-time needs elements in the same way as the predecessor benefits that were covered by the Carton case; and, as they say, all charging is discretionary.

But some of those same councils are saying that their DRE policy – under which they have continued to allow that same £29.60 a week for night-time needs if those have been ‘acknowledged in the care plan’ – means that they are not in the Norfolk danger zone, although they do apply minimum or near minimum MIG.

Misreading of case

We think that that is a misreading of the case. The judge said that a DRE policy was not capable of being mitigation for the disproportionate impact of ignoring the need for income protection for all disabled people, ensuring that the outcomes did not discriminate against the severely disabled, disproportionately. DRE is a key part of ensuring that individuals keep some income safe from charges, to pay for private expenditure related to one’s condition. But it is an individual concept and needs to be positively asserted, and approved, individually, in all councils offering even a specified standard sum for a DRE disregard. The fact of spending money privately on disability related needs is not coterminous with the factors that qualify the severely disabled for higher rates of benefit – or even for eligibility for social care and support, in the first place.

For all these reasons, the allowing or disregard of the higher rate of PIP as an income protection aspect of the policy is critically important, we think, to mitigating the way the charging system works. If it is to mitigate the percentage effect that is the problem for those with the highest PIP or other disability benefits, regardless of a comparison using disregarded earnings as well, then disregarding that chunk of money cannot be dependent on whether or not it is actually needed for night-time care needs. If it is needed, then the cost of meeting those needs would arguably have to be taken into account as well, and some other bit of the person’s income should be regarded as invisible, to enable that disregard. So the happenstance of whether such ‘disregards’ are part of a council’s approach to income protection for any higher rate benefits recipient, part of a ‘standard DRE’ allowance policy, based on proof of the existence of night time needs or based on actual expenditure on such needs, is critically important, for the defence of councils’ legal positions, regarding the Norfolk principle, in our view.

Notably, no council has replied to CASCAIDr with anything like this: “We consulted properly, we did an equality impact assessment, we thought about our wellbeing promotion functions, we thought about the public sector equality duty – and we identified the percentage issue spotted by the judge, but decided we couldn’t afford to mitigate any further because we are struggling to break even, after a decade of year-on-year cuts.”

It’s not every council that is behaving less than helpfully. Cheshire East, Blackpool, Wiltshire, and Buckinghamshire have all said that they will review the policy specifically for Norfolk compliance and Enfield has already done so, and made changes, as far as we understand. We have found about six other councils whose policies already mitigate the percentage differential,  and told them so, and even now we are receiving , which may lead to improvements that go beyond Norfolk, into the realms of DRE aspects of such policies.

What’s going to happen now?

We are replying to councils who seem less than committed to change, to the effect that councils can’t just leave people in limbo: people in charging debt, for instance; people who expect refunds, on account of no or no significant extra amount being allowed as a minimum income guarantee; people who are paying current charges into direct payment accounts, possibly, and therefore getting funding from the council that ought to be greater, if the person’s charges are in fact unlawfully high; and lastly, people for whom the council is a corporate appointee.

We point out that their saying that they will be ‘looking at the policy in the fullness of time’ is something that all councils have to do anyway.

We have been using real clients’ actual claims to wipe out debt, as a basis for insisting that councils come off the fence; and that does seem to be succeeding, slowly, so we would commend it as one way forwards.

The advice that we have crowdfunded for asserts that not engaging at all will be maladministration.

Not providing clarity for those who might otherwise seek a DRE review or appeal their charges, or complain or send a Monitoring Officer letter, is systemic shabbiness and a potential breach of the advice and information duty in the Care Act, we think.

It would no doubt be described as the management of legal risk, but it is both hugely naïve, and cynically unethical, at one and the same time, now the disability movement is marshalling and organising itself to do all those things, in large numbers.

Lack of affordable legal advice

One might well ask, then, what is stopping further challenges – given that refunds of a couple of years’ worth of £30 a week would be a pleasant windfall for most people, and could get rid of current care charges debts for others?

We think that it is a systemic issue about access to legal expertise or to legally aided advice. There is none that is affordable, as far as we can see, because legal aid law firms are not generally interested in these cases. We are working with one or two that have come forwards, to ensure that the economics of taking the work on is  commercially acceptable, and seeking a grant from a foundation and other philanthropists, and pro bono work from lawyers who wish to help. We’re also working with a professional appointeeship company to trawl its database for red flags on people’s charges and cross-referencing that with our research into 150 policies, and preparing public freedom of information questions for councils still refusing to engage at all. But the legal aid law firm referral route is critically important, because privately funded challenges would bear a significant risk as to the liability for a council’s costs, if the challenge failed, and recourse to the Court of Appeal may well be necessary, which costs thousands.

Those who don’t qualify for legal aid because they have got a house with £100,000 of equity in it, or over £8,000 in other savings, naturally want cheap or free legal advice. They need to find a law firm who will treat them as a group, and perhaps use our evidence in support of how widespread the problem is, we think.  What is needed is a champion or a law firm that is prepared to address the sector’s intransigence as a legal issue in itself, or a charity with a protective costs order, to stand up for them, which is realistically unlikely, in terms of a charity board’s decision that the risk is worth it.

What has gone wrong in community care law

We see this case, and the councils’ response to it, as reflecting what has gone wrong on a much wider scale in community care law over the last 15 years:

• Cost-shunting from the NHS to councils.
• Funding savagery from central government.
• Councils shunting costs to providers, through outcomes-based commissioning and abuse of a dominant purchasing position.
• All kinds of assessment and care planning or cuts shenanigans, in breach of well-established legal principle.
• Councils raising charges to such a level that they are generally now all leaving people with the minimum MIG, and passing activities and wellbeing provision over to clients’ own income and families’ financial support, but not disregarding either of those types of expense against income.

Fortunately, in future cases, those types of allegation will likely be made as well as the Norfolk challenge, and the overall effect may be a resurrection of the principle that community care rights are actually enforceable, and not just as long or as short as a piece of string.

If people want to join together with others who care about this issue at both a legal and political level, we recommend contacting katie@bringingustogether.org.uk. You can also have a £35 charges check from CASCAIDr (and our collaboration with our legal aid firms’ colleagues means that your case can be taken on soon, regardless of wherever you happen to live in this country).

Any organisations wanting to offer help in whatever small but concrete manner, so that we can continue to wrestle with the issue, should contact belindaschwehr@cascaidr.org.uk.