A disabled woman’s high court victory has highlighted how the current social care system has a disproportionately negative impact on disabled people with the highest support needs, say campaigners.
The high court has ruled that Norfolk County Council breached the rights of the woman – known as SH – by discriminating against her when it changed its care charging policy.
Like many other councils, Norfolk has been making up for cuts in government funding by reducing the minimum amount of income that SH and others must be left to live on after any charges – the minimum income guarantee – and by taking into account the daily living part of their personal independence payment, when deciding how much to charge them for their care and support.
But the council’s new policy meant that SH and other disabled people in her situation with high support needs had a higher proportion of their income taken by the council than disabled people receiving lower benefits and those who were able to do paid work.
The court heard that SH, who relies on benefits for her income and has Down’s syndrome and physical impairments and health conditions, has never been able to earn money and there was “no prospect of her doing so in the foreseeable future”.
The new council policy meant that the charges she would have had to pay the council from her benefits – for day services, respite care and a personal assistant – would have risen from £16.88 per week to £50.53 per week.
The court found that the new policy discriminated against “severely disabled” people under the European Convention on Human Rights because the council would be charging those with the highest support needs proportionately more than those with lower support needs.
The court said that this discrimination was “serious” and “directly contradicts” the council’s claim that it wanted to “encourage independence”, and was “irrational, unnecessary, and wholly out of proportion”.
The council will now have to change its charging policy to ensure it no longer discriminates against disabled people with high support needs.
Inclusion London said the ruling showed that the current system and the changes made by local authorities had had “a disproportionately negative impact on disabled people with the highest support needs”.
An Inclusion London spokesperson said: “This group of disabled people find it extremely difficult to get a job and maximise their income.
“Moreover, they usually need social care support to meet very basic needs.
“They are also the least likely and able to challenge local authority charging decisions. Consequently, they are often pushed into deeper poverty.”
Inclusion London warned that DPOs across the country were reporting that their local authorities were implementing similar policies.
It said the judgement should be a “wake-up call” for other councils, showing that it was “unfair, unjust and discriminatory to force people who can least afford it to pay more for the vital support they need”.
SH’s mother said: “We are delighted at the judgment. We have always said the new charging policy by Norfolk County Council was discriminatory and today we have been proved right.
“Now the council will have to think again, properly consider the needs of severely disabled people and make fair provision for them to be able to live their lives with the care that they need.
“My daughter’s care includes the provision of a pathway to prepare for independent life after I am gone. Today’s judgment restores our hope that this will be made possible.”
Rowan Smith, a solicitor at Leigh Day, who represented SH and her mother, said: “Today’s judgment means that Norfolk County Council will have to rethink its discriminatory care charges policy.
“This is a complete vindication of the bravery our client and her mother have shown to bring this case, which we hope will have an immensely positive impact on the lives of people with disabilities and their families across Norfolk and the whole country.
“This case would not have been possible without the access to justice afforded to SH by legal aid.
“As the judge said, the discriminatory effect of the measures they imposed was irrational, unnecessary, and wholly out of proportion.
“There is no lawful basis for the council continuing with its policy, and we fully expect our client’s human rights to be properly respected when the council comes to changing it.”
Cllr Bill Borrett, cabinet member for adult social care and public health for Norfolk County Council, said: “In his judgment, the judge said that our charging policy was discriminatory but in an ‘unintended and unforeseen’ way.
“We are sorry for the distress this has caused. The council is committed to working with the claimant and her family to resolve the issues raised in this judgment as quickly as possible.
“We had already paused implementation of our charging arrangements that had been due to come into effect from last April, and will now bring forward new proposals to cabinet as soon as possible to rectify the situation.”
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