A man with Down’s Syndrome received social care from his local council, under Scottish legislation. The council had a policy on what disability-related expenditure it would deduct in assessing his ability to pay charges for his care. The Supreme Court held that the failure of the council to adopt a more generous approach on this – beyond its existing favourable treatment of disabled people – was not “unfavourable” treatment within s.15 EqA. It might be different if the council applied a stricter standard for disability-related expenditure than for other forms of necessary expenditure. A claim for reasonable adjustments also failed, as there was no policy putting him, as a disabled person, at a disadvantage compared with non-disabled people. My comments are below.
[2023] UKSC 1, Supreme Court. Full judgment www.bailii.org/uk/cases/UKSC/2023/1.html
Facts
The claimant acted as guardian for her son, a 27-year-old man with Down’s Syndrome. The man lived with his parents.
The Social Work (Scotland) Act 1968 required the council to provide social care. The council provided various activities for the claimant’s son to participate in, with support to enable him to do so, and also short periods of respite care. For these services, the 1968 Act entitled the council to recover such charge (if any) as the council considered reasonable (s.87(1)). The Act also said the council could not require a person to pay more than it appeared to the council practicable for them to pay (s.87(1A)). Regulations specified that part of the Disability Living Allowance received by the son must be disregarded when assessing his available income.
The claimant argued that her son had to bear various items of disability-related expenditure which the council had not deducted when assessing how much it was practicable for him to pay (additional costs are listed at para 24 and 28 of the judgment).
Guidance from the Convention of Scottish Local Authorities (“COSLA”) stressed the importance of taking into account disability-related expenditure, when assessing a person’s means in order to decide what charges they could afford. The council’s own policy document said: “Consideration will be given to representations to take into account other specific costs of living, eg in relation to disability related expenditure.” It was left to the judgment of the relevant Council officials whether, in applying the statutory test, any particular item of expenditure should reduce someone’s available means so as to affect what is “reasonably practicable for him to pay for the service” (s.87(1A)).
The claimant argued there was a breach of s.15 Equality Act (discrimination arising from disability) and a failure to make reasonable adjustments. She did not argue that the council’s charging decision was irrational or in any way unlawful on general public law grounds separate from the EqA.
Supreme Court decision
“Unfavourable treatment”: s.15 EqA
‘Discrimination arising from disability’ under s.15 EqA is where a person treats a disabled person unfavourably because of something arising in consequence of the disability. In this case the focus was on whether the council had treated the claimant’s son “unfavourably”. The Supreme Court held that no it had not.
The Supreme Court referred (at §56-57) to its decision in Trustees of Swansea University Pension & Assurance Scheme v Williams. There the claimant had been entitled to take accrued pension benefits early because of ill-health, but argued that he was subjected to unfavourable treatment because his pension (based on his salary immediately before retirement) was reduced because he had previously had to cut down his hours due to his disability. The Supreme Court had held that this was not unfavourable treatment under s.15. Without the disability he would have been entitled to no pension at all at that time. Lord Carnwath in the Swansea case quoted (with evident approval, said the court in McCue) a passage from the Employment Appeal Tribunal decision saying:
“treatment which is advantageous cannot be said to be ‘unfavourable’ merely because it is thought it could have been more advantageous, or, put the other way round, because it is insufficiently advantageous.”
In the present case, said the Supreme Court, the relevant “treatment” was the council’s application of s.87 in deciding how much to charge the son, and its evaluation of what deductions should be made in calculating his available means and what it was practicable for him to pay (§58). Was this treatment “unfavourable”?
The council charged both disabled and non-disabled persons according to the same basic scheme as set out in its policy document. Whether disabled or non-disabled, an individual might be subject to practically unavoidable financial pressures for a variety of reasons (eg heating, repairs) so that it was not reasonably practicable to use their means required to meet such pressures in order to pay a charge to the council (§59).
The specific mention of disability-related costs in the COSLA Guidance and in the council’s own policy document was an extension of the council’s general approach under s.87, to take account of an additional category of practically unavoidable costs which the disabled individual may have to bear, over and above what non-disabled persons have to bear. Accordingly, this aspect of the council’s approach was not unfavourable to disabled persons. On the contrary, it was favourable to them, since it allowed for a greater range of possible deductions (§60). The true nature of the claimant’s complaint under s.15 was that this aspect of the treatment was not generous enough, although it benefited persons with disabilities (§61).
As made clear in the Swansea case, the failure of the council to apply s.87 in a more generous way – beyond the favourable treatment for the son as a disabled person already built into its approach – was not unfavourable treatment for the purposes of s.15(1)(a) EqA (§61).
An example of what would have been unfavourable treatment
The Supreme Court said that just because there was a favourable feature for disabled persons in the council’s approach to applying s.87, this did not in itself rule out any possibility of a s.15 claim:
62. … The overall policy or approach adopted by a defendant may establish a normal standard of conferral of benefits from which it might be possible to identify a departure adverse to disabled persons, even though they receive benefits under the policy or approach so that it can be said that, in a certain sense, they are complaining that the policy is not favourable enough for them. It would then be possible for them to rely on the basic comparative exercise referred to in para 55 above*, referring to the general context created by the overall policy or approach itself. So, for example, if the appellant had been able to show that in its approach to section 87 the Council applied a stricter standard before allowing deductions for disability related expenditure than it applied before allowing deductions for other forms of necessary expenditure which might be incurred by both disabled and non-disabled people, it would have been possible to argue that Mr McCue had been treated unfavourably because of something arising in consequence of his disability. But this was not the case presented by the appellant.
*The Supreme Court said at para 55: “It is not necessary to identify a non-disabled comparator to find that there has been unfavourable treatment, but it may assist a complainant to do so, as a means of showing that the treatment he has been subjected to was unfavourable and that it occurred because of something arising in consequence of his disability.”
Reasonable adjustments
In providing community care services, the council fell within Part 3 EqA and was subject to a duty to make reasonable adjustments (§64).
The claimant had to show under s.20(3) EqA that a provision, criterion or practice (PCP) of the council put her son at a substantial disadvantage in comparison with persons who were not disabled, so that the council had to take reasonable steps to avoid the disadvantage (§65).
The Supreme Court said that even if there were no unfavourable treatment under s.15, there might still be a reasonable adjustments claim, as s.20(3) includes a PCP apparently neutral in form, applying to disabled and non-disabled persons alike, whose application produces a particular degree of detriment for a disabled person which ought to be corrected (§66-67).
If the council had been subject to a statutory duty to act as it has done, its approach would not have been a PCP of its own, but something imposed on it by the law. However, s.87 conferred a discretion on the council whether to charge, and a power of evaluation as to how to calculate such a charge. Therefore it was possible for the council itself to adopt a PCP which is capable of falling within the EqA (§68).
However the Supreme Court held that the following policies or practices did not put a disabled person at a disadvantage in comparison with non-disabled people:
- that the council would consider charging any person to whom it provides community care services, whether they were disabled or not (§69)
- charging for community care services where the council assessed that it was reasonable and practicable for the recipient to pay such a charge, having regard to the financial pressures to which the recipient was subject (this did not “in itself” put a disabled person at a disadvantage)
- the COSLA Guidance or the council’s policy document. Neither stated what substantive policy the council would apply when deciding what costs it would treat as disability-related expenditure. They did not contain a PCP putting a disabled person at any disadvantage compared with non-disabled, but indicated that a disabled person might be able to ask the council to make deductions which would not be made in calculating the available means of a non-disabled person (§72).
The claimant’s argument concentrated on the more substantive policy of the council as to how it decided what costs it would treat as disability-related expenditure. The Supreme Court was prepared to infer from the council’s pleading that it had adopted a practice of assessing this as follows: items were rejected if they did not relate to disability; or if, while relating to disability, a person received a benefit to meet the cost in question; or if they represented discretionary spending and were not necessary to meet the disabled person’s needs (§73).
However the Supreme Court said it was clear that this practice did not put the son, as a disabled person, at a disadvantage compared with non-disabled people, because the practice only applied to disabled people. As a distinct practice – as the claimant’s lawyer identified it – this practice did not allow for any comparison to be made with the treatment of non-disabled people. Alternatively, one could say that this practice, as so identified, conferred an advantage on disabled persons in comparison with non-disabled persons, not a disadvantage. Either way, the reasonable adjustments claim failed (§74).
My comments
Comments: Unfavourable treatment under s.15 EqA
Given the Supreme Court’s decision in the Swansea case, it is unsurprising that the court decided that the way the council assessed community care charges was not “unfavourable” treatment within s.15 EqA. It was not enough that, though favourable to disabled people, it could have been more favourable. However this decision, particularly §62, is useful as to what could be unfavourable treatment in another case, such as if the council had applied a stricter standard before allowing deductions for disability-related expenditure than it applied before allowing deductions for other forms of necessary expenditure.
Comments: Reasonable adjustments
There is case law that in deciding whether a PCP puts disabled people at a substantial disadvantage, the court looks at the PCP without any adjustments already made for disability: Reasonable adjustments by service providers>Whether there is a disadvantage is decided ignoring any adjustments actually made. It would have been interesting for the Supreme Court to explore whether the council’s policy on disability-related expenditure was such an adjustment (cf §53 of the Inner House decision (bailii.org)) which should have been ignored in assessing any disadvantage. The court may have decided that the deduction of disability-related expenditure in assessing means was really no different from the council’s general assessment of necessary expenditure, and so should not be seen as an adjustment. However the facts of the case illustrate that there may be tricky questions here.
The courts may be reluctant to hold that this kind of case is subject to the reasonable adjustment duty because that could involve the courts deciding what deductions for disability-related expenditure are reasonable (or at least what method of calculating them is reasonable) in an area where the statute gives substantial discretion to the local authority.
The Supreme Court says that under s.20(3) EqA the claimant had to show that a provision, criterion or practice (PCP) of the council put her son at a substantial disadvantage in comparison with persons who are not disabled (§65). However other cases (not cited by, or presumably to, the Supreme Court) indicate the first test to be whether people with the same kind of disability as the claimant are put at a substantial disadvantage (Reasonable adjustments by service providers>Particular kind of disability). The Supreme Court at §13 does mention EqA Sch 2 para 2(2) on which this is based, but does not expand on it. In any event, it seems this would not have altered the outcome of the case.
