High Court orders local authority to withdraw discriminatory charging policy


Re: SH v Norfolk County Council [2020] EWHC 3426 (Admin)

SH has severe learning difficulties and physical disabilities associated with Down Syndrome. In a claim for judicial review, SH challenged the basis on which Norfolk County Council (“NCC”) calculated the charges she had to pay for Council-provided care. NCC introduced a new Charging Policy, which significantly reduced the minimum level of income (the “Minimum Income Guarantee” or “MIG”) that an adult in SH’s position could receive before being charged for care. It also included the PIP Enhanced Daily Living Rate in the calculation of the MIG. Earnings from employment or self-employment were disregarded from the income assessment.

Held: the Charging Policy discriminates against severely disabled people, contrary to Article 14 read with Article 1 of Protocol ECHR. The Charging Policy has a disparate impact on severely disabled people, who have high care needs and significant barriers to work. Unlike SH, less disabled people may be able to supplement their income with earnings from employment or self-employment.

NCC argued that the effect of the Charging Policy could be justified by the aims of encouraging independence and having a sustainable charging regime, as it was using some of the savings from the policy to invest in employment opportunities for disabled people. The court held that the differential impact of the policy on the most severely disabled people was manifestly without reasonable foundation. NCC failed to consider that the Policy had the effect of limiting SH’s independence and was in fact a perverse and unintended outcome.

Emma Foubister and Zoe Leventhal were involved in this case.