Judge’s care charges ruling criticises council’s ‘extraordinary’ approach on costs

A high court judge has criticised a council for taking an “extraordinary” approach to calculating an autistic man’s care charges, which placed too much emphasis on costs and not enough on his right to live independently.

The judge has ruled (PDF) that Windsor and Maidenhead council behaved unlawfully by refusing to view activities the man attended as part of a social and life skills group as “disability-related” spending.

The council (pictured) will now have to reconsider its calculations.

The claimant, who is 25 and was referred to in the case as RW, is autistic and receives direct payments from Windsor and Maidenhead council to fund his care and support package, but he contributes to the cost of that support through weekly care charges.

As part of that package, he attends a social and life skills group, Step Together (ST), three times a week and has one-to-one support from ST staff at his home twice a week.

RW has difficulties communicating and can struggle to make himself understood, which causes him significant anxiety, and he is unable to understand non-verbal communication.

But attending the social and life skills group has made him happier and more confident, his family say, and without those sessions he can become withdrawn, isolated and depressed.

On top of the cost of attending the group, he pays for the activities he attends, which are not covered by his support package.

He argued that the cost of attending these activities should be seen as “disability-related expenditure”, disability-related costs that should be taken into consideration when assessing how much he can afford to pay every week in care charges.

The council disagreed, and claimed RW had “chosen” the activities, and so they were not disability-related, and that his need was for support from staff and not for the activities, while there were cheaper ways for him to have social interaction, and that such spending was part of his “care and support”.

As a result, RW’s care charges reached about £320 a month, which he could not afford to pay and often had to ask his mother to cover, leaving him “stressed and demoralised”.

But the judge found the council was “wrong” to conclude that the activities he attended at the social and life skills group were not disability-related.

He concluded that in “an important and material respect”, the council had failed to meet RW’s eligible care and support needs by refusing to recognise the activity costs as disability-related expenditure.

Deputy high court judge Dexter Dias said the council was also wrong to fail to take enough account of “adverse emotional impact, social anxiety, the claimant’s wishes and feelings, autonomy and choice” and that it had given “disproportionate, excessive and unreasonable weight to financial considerations”.

The judge concluded that the council had not “carefully weighed” the impact on RW if he could not attend the group sessions.

And he suggested that the council had failed to take account of the UN Convention on the Rights of Persons with Disabilities by placing “undue emphasis” on the question of cost without properly considering the impact on RW, who needs support to live “independently and autonomously”.

RW had said in his care plan that the other attendees at the social and life skills group were “the only group of friends that I have”.

He had said in a statement that the other attendees of the ST group were his “circle and support system”, adding: “I otherwise have difficulty making and maintaining friendships and without social contact I can get very low.”

The judge described the council’s approach as “extraordinary” because it had “discounted” spending that allowed RW “to develop his social skills and confidence through the arranged groups activities in the context of an environment he feels secure in”.

He also suggested that the council had failed to take account of disabled people’s rights under the UN convention to be put at the heart of decision-making.

He concluded that the council had behaved unlawfully.

RW said after the judgment: “I am very glad to have won this case and it will help me to continue attending my group without all the financial worry.”

Inclusion London and Greater Manchester Coalition of Disabled People (GMCDP) both praised RW for taking the case.

Svetlana Kotova, director of campaigns and justice for Inclusion London, which is campaigning for the government and local authorities to scrap all care charges, said the judgment “exposes how cruel, intimidating and often oppressive the system of claiming DRE is*”.

She said: “Windsor is not an exception. We see many cases where local authorities come up with all kinds of reasons not to allow DRE.

“People who already struggle financially and require support are made to evidence every penny, argue and complain for months and often years just to keep a bit more of their benefits money and spend it on extra costs that they need.

“It is a scandal that the judge has to remind local authorities that cheapest is not the best and that they need to consider things on an individual basis, taking into account wider context.”

Helen Rowlands, a GMCDP executive council member, said that navigating DRE was often a “bureaucratic nightmare for disabled people with statutory non-residential care needs who are charged by their local authority for the support they need”.

She said: “Financial assessment officers’ understanding of the statutory guidance on DRE can be patchy, and in the worst cases, unlawful misinterpretations are guiding councils’ DRE refusals.”

Rowlands said the ruling had now provided councils with “crystal clear legal guidance”.

She said: “The Care Act requires them to fairly consider any claim for DRE on a case-by-case basis, in a sensitive examination of the disabled person’s needs, with reference to their care plan and the statutory guidance.

“That guidance is informed by the UN Convention on the Rights of Persons with Disabilities (UNCRPD), and this case gives additional weight to the vital importance of the parties at Westminster committing to adoption of UNCRPD into domestic law within the first 100 days of the next government.”

RW was represented in his legal case by law firm Leigh Day and barrister Emma Foubister, from Matrix Chambers.

Lucy Cadd, a solicitor at Leigh Day, said: “This is a very sensible and robust judgment that will have important implications for the way claims for disability-related expenditure should be considered by local authorities.

“Going forward, local authorities will need to consider any claim for disability-related expenditure on a case-by-case basis, fairly and sensitively examining the claimant’s needs by reference to their care plan and flexibly interpreting the regulations and guidance which have been informed by the UN Convention on the Rights of Persons with Disabilities.”

Windsor and Maidenhead council initially refused to even acknowledge a request to comment from Disability News Service, before eventually refusing to comment.

*Inclusion London has launched a DREy tool, which helps disabled people document their disability-related expenditure, alongside a guide on how to use the tool and template letters to send to their local authority if they do not respond positively

Picture by Google

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