Blog post by Tim Baldwin of the Garden Court Community Care Team.
Recently, the decision in R (YVR by YUL) v Birmingham City Council [2024] EWHC 701 (Admin) (“YVR”) considered Birmingham City Council’s charging policy for the provision of social care in the community to meet the assessed needs of severely disabled adults, in light of the previous decision of R (SH by his litigation friend MH) v Norfolk CC [2020] EWHC 3436 (Admin) (“SH”) (see link to Social Welfare Update).
In SH, the Court held that Norfolk Council’s policy on charging for services unlawfully discriminated against severely disabled service-users and breached their human rights. By contrast, in YVR, the Court dismissed a similar claim for judicial review and held, by contrast, that Birmingham’s policy for charging for such services was lawful and non-discriminatory.
Given that SH was neither appealed, nor formally disproved of in YVR, the question arises as to when such charging policies are unlawful and discriminatory. It is understood that the decision in YVR is being appealed to the Court of Appeal, but the question may remain as to whether these cases will, which depends on the precise facts and circumstances in each challenge.
The decision in YVR
At paragraphs §§ 27 and 28 of the judgment, the documentation confirmed that Birmingham’s policy was intended to produce an increase in the Council’s revenue from these charges for care, but that the revenue being raised in this manner were being applied to pay for adult social care.
At § 28 of the decision Mrs Justice Collins-Rice stated:
The Council's up-to-date policy document sets out the statutory framework and the 'principles' from the Government's guidance. Under a heading of 'income', it specifically references the relevant parts of the government guidance; it states that its approach is to consider as income all the benefits an individual receives except to the extent excluded by the statutory scheme. But it also states that it will ensure that, in addition to the MIG and to the benefits excluded, an individual retains enough to pay (on receipt of proof) for certain specified outgoings. These include 'disability related expenditure', which in turn is defined to include 'costs of any specialist items needed to meet the person's disability needs'.
Further, § 30 of the judgment states:
The Council has applied its charging policy to the Claimant. In his case, the outcome has been that it has charged him the maximum amount envisaged by the statutory scheme. It has taken all of his benefits except those excluded by the scheme or protected by his personal MIG. It considers this to be consistent with the law, the Government guidance and its own policy.
(Emphasis added)
At §§ 31 – 35 of the judgment, the court reviewed the impact of SH. It found that Birmingham reviewed its policy in response to the SH judgment, and also stated there may be a requirement for a further equality impact assessment if there is a change in policy. However, in essence, even though it appears to be more transparent, the essential mechanisms of Birmingham’s policy remained unchanged from 2016.
The court had regard to Birmingham’s budgetary crisis as part of its considerations. The grounds of judicial review are set out at § 41 of the judgment and grounds of discrimination under Article 14 of the ECHR.
The focus on issues which arise in YVR is set out from § 61 onwards. At § 63 of the judgment, it identifies the impact of Regulation 14 of the 2014 Charging Regulations and its impact with the conclusion at § 67 of the judgment, identifying the policy behind the regulation and what appears to be the core of the dispute:
To start with, the provision in the Regulations for an earnings disregard undoubtedly does deliberately privilege earned income. Those permanently unable to earn have no access to that privilege. Its underlying policy of incentivising paid work has no rational application to them. But the interplay of the statutory schemes for: (a) local government assessing their care needs, (b) national government providing benefit income taking those needs into account and providing funds to meet them, (c) local government meeting their care needs and (d) local government charging for (some of) that provision, addresses their particular situation in a lot of other interrelated ways. The real questions raised by the present challenge seem to be whether, within the framework of the statutory scheme taken as a whole, the Council's charging policy can properly be said to treat people of the Claimant's status group less favourably than any other group receiving and being charged for adult social care.
Thus, at the core of this challenge is whether charging policy treats the Claimant’s group less favourably. At § 68, it states that the indirect discriminatory effect caused by Birmingham’s policy is elusive. Also, at § 70 of the judgment in the comparator exercises carried out by YVR’s solicitor, it was not plain that any difference was because of the charging policy.
Part of the policy objective in YVR concerns the financial circumstances of Birmingham and the charging policy.
The question which the charging policy raises in the sense of the justification is “whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective.” This is the point of addressing the case of SH, the question raised, and “how much mitigation is enough.” This refers to the mitigation of the impact of the relevant regulation (see § 86 of the decision). It was noted that in SH, the court had approached this issue on the basis that Norfolk had other choices for raising the “same level of charges overall”, and for making its charging regime sustainable “to the same extent” and that there were “other ways of achieving the same balance between costs and revenue.”
Mrs Justice Collins-Rice identified that:
But this is surely an entirely fact-sensitive evaluation. The choices available to one local authority may not be available to another. The evidence from the Council in the present case is that it has nowhere else to go to achieve the same balance, and that indeed is the plain logic of defaulting to the statutory maximum take. It cannot enable those who cannot work to be charged less for having their care needs met without either reducing further an already insufficient adult social care budget, or subsidising the adult social care budget from somewhere else external to it. But in reality there is nowhere else. All the Council's other heads of revenue and expenditure are fully accounted for. 'There are no other choices.'
So, Mrs Justice Collins-Rice identified that the circumstances of one authority are not necessarily the same as the other. As such, the outcome in SH or YVR, in my view, are not necessarily determinative of the issue in other disputes.
In my view, the key issue in respect of the evidence before the court in YVR is set out at §§ 91 – 92 of the judgment:
91.The Claimant's eligible social care needs have been identified and assessed, and are being met. They are being more than met – the 'eligible needs' themselves are in basic enough subsistence terms, but they are being met in ways which give the Claimant a substantial dividend in terms of quality of life and social interaction, occupation and activities, personal attention, communication and mobility. He is provided with benefit income at personally calibrated levels which are addressed to his enhanced needs and expenses, and which are intended in specific ways to be used for exactly the purposes for which they are being used – to pay for those enhanced needs to be met and those expenses to be covered. His income is otherwise protected from charges in ways which are tailored to his situation. It is his relative position which is challenged in these proceedings, not his absolute position; as I have said, no clear or evidenced case on comparative 'affordability' or 'sufficiency of disposable income' is made in this claim.
92. The Claimant does not have the possibilities of an earner. He does not have the hope of those possibilities. And it is undoubtedly possible to imagine more for him by way of alleviating the effects of his disabilities and improving his life, that money could buy. His mother is well placed to imagine things for him. Her evidence, for example, mentions the possibility of a holiday or more ambitious trips (although his social worker sounds a note of caution about his ability to cope with those sorts of changes to the routine which is so important for him). Local authorities should exercise their imaginations also. But the case for severity of impact is not articulated, or apparent on the present facts, to any clear degree.
(Emphasis added)
The key issues identified here are (1) that the case is just looking at the Claimant’s relative position, rather than absolute position as to the impact of the policy, and (2) the lack of impact of the severity of the impact of the policy, or the impact as to how Birmingham went about their assessment. It appears that the actual lack of evidence of the impact on YVR themselves was key in the decision, as the MIG and the DRE assessments seem to protect YVR’s care.
The justification issue was, in my view, central to the claim as set out in §§ 93 – 95 of the judgment. The key issue is identified at § 93 of the judgment such that:
On the other side of the balance is not just the financial imperative of getting a proud city with an international reputation back on its feet again in simple budgetary and public interest terms. There is the immediate imperative of delivering the radical spending cuts, asset sales and service restrictions in a way which is as fair as possible to all of the Council's taxpayers and service users. That is a political decision at macro level in which, within the 'narrow path' to which the Council is constrained by national government intervention on a public interest basis, the Council must be afforded a degree of latitude. The sacrifices that are being demanded of everyone in the city are unprecedented. Nothing outside of any other statutory minima is off-limits.
The Council's decision in these circumstances is that, the needs of its most vulnerable service users in the position of the present Claimant having been sufficiently safeguarded by detailed statutory minima, other measures addressed to mitigating their exclusion from the workplace must take their place for the time being along with the sacrifices demanded of all its citizens. That cannot fairly be regarded as disproportionate to the point where the courts should be expected to intervene to force a different outcome.
Thus, at its core, the question appears to be whether a Claimant, or a group of Claimants, are sufficiently safeguarded by detailed statutory minima, and whether other safeguards also protect them, such as the charging policy. In my view, this is the core issue in further cases when considering YVR in the context of the judgment of SH, and whether § 94 of the judgment in YVR may not apply, against the risk that local authorities now may seek to justify their position based on the evidence of their need to safeguard budgets.
§ 94 of YVR states:
94. In SC, Lord Reed JSC held as follows (at [158]):
a low intensity of review is generally appropriate, other things being equal, in cases concerned with judgments of social and economic policy in the field of welfare benefits and pensions, so that the judgment of the executive or legislature will generally be respected unless it is manifestly without reasonable foundation.
The present case concerns the Council's political and administrative judgments of social and economic policy in the field of welfare benefits, in exceptional financial circumstances - the effects of which are being felt across the city and at a national level. Its position is not manifestly without reasonable foundation. It falls to be respected.
The key distinction between SH and YVR is set out at § 88.
Some local authorities may have more choices about “less intrusive measures” than others. Apparently Norfolk was, at least historically, in a relatively favourable position in that regard. I am satisfied, satisfied on the present evidence before me in the present case, that Birmingham is not.
Thus, Mrs Justice Collins–Rice concluded that Birmingham’s situation was exceptional, and that other local authorities may be in different circumstances. The judgment ended on consideration of the “difficult question” post-SH of how much adjustment as to the relative position of the Claimant would be enough to be lawful and compliant with the decision (§ 99). My view from this is that SH remains good law, but that the evidence of impact of a charging policy on the Claimant, and the justification by reference to resources, seem to be the relevant issue and the evidence before the court. It is likely to be relevant in further cases.
Comment
In my view, given the consideration of SH in YVR, and what each case of such challenges pose, SH will depend on evidencing the impact of the individual local authority policy on the individual claimant. It will also depend on the nature of their justification, and whether needs can be met and protected when “exceptional circumstances” arise, as with Birmingham, and what such “exceptional circumstances” are comprised of.
In very interesting commentary by Arianna Kelly in “Social Care Charging” (Law Society, 2023), which was published pre-YVR, at pages 78-82, the learned author comments on SH and concludes that this case is restricted to its facts for the two reasons set at page 81–82. In summary, it concluded (1) based on the possibility of Norfolk raising the same level of charges or revenue by alternative means, but the author does cast doubt on this, given the court does not really grapple with this issue or that it was any other assessable income on which charges were not already levied: (2) the judicial review was brought in respect to a specific change in a policy which had been previously been more favourable to SH and others in receipt of enhanced rate Personal Independence Payment (PIP) income, which was made much less favourable, specifically in receipt of PIP and severe disability premium.
The author found the decision, which had not been “conscious”, to have the effect of raising these charges against this group of individuals, and solely in relation to this group, was manifestly without reasonable justification in failing to recognise its effects. However, prior to the YVR decision, the author postulates on how relevant the judgment in SH would be if local authorities adopt the national MIG as a general policy, due to their local financial situation.
Thus, subject to the outcome of any appeal in YVR, it is my view that, in any event, defendant local authorities may likely seek to file evidence as to what their budget constraints are, in respect of present and adult future care costs, to suggest they fall in the “Birmingham” category of Local Authority. However, this would have to be “exceptional,” and each case would turn on its own facts and circumstances including, on the evidence, an evaluation as to whether stripping back to the MIG in charging would have an adverse impact on meeting the assessed needs of severely disabled adults.
