It’s wrong to charge people for community care services
LAWYERS are taught to be dispassionate. You need to be dispassionate to do a professional job in court. That said, you’re entitled to your principles and beliefs.
I believe it’s wrong to charge disabled people for community care services. Deducting money from a human being’s social security benefits to help pay for their care rankles with me.
We don’t charge for access to the National Health Service. But you have to pay to be disabled in Scotland? How can that be just and equitable?
Dignity shouldn’t be a commodity. It should be free to everyone in a civilised society. The Scottish Government did promise to abolish these charges in 2021 but so far that hasn’t happened. It would cost between £ 40 million and £ 50m per annum to do so.
Social security benefits recognise that life is more expensive when you have a significant disability. You may have more heating costs, require specialist footwear or have extra clothing and laundry costs because of a disability. You will likely have additional travel costs but benefits for these aren’t considered for charging purposes as a matter of law.
Across our country we impose charges on disabled people to lead an independent life. Essentially that means taking away social security benefits and making people poorer.
I wrote about this in my very first Glasgow Evening Times column in November 2019. I’d spent a couple of days before the Court of Session arguing against such deductions. I then argued before the Inner House of the Court of Session. Some three years on, I argued these issues before the UK Supreme Court ( UKSC) in the case of McCue v. Glasgow City Council.
The judgment in McCue was handed down last week as the first decision of the UKSC in 2023. It’s not easy getting to the UKSC in London. Most applications to be heard are refused. Last year the court only issued 35 decision across the whole of the UK.
The UKSC refused the appeal in McCue, but for different reasons to those given by the Second Division of the Court of Session.
It’s disappointing to lose an appeal, but there were important silver linings in the judgment that can be used to challenge local authorities in relation to their charging policies and practices for community care services.
The UKSC’s opinion is a complex and needs to be carefully unpacked because it clarifies the law in relation to disabilityrelated expenditure ( DRE) and the operation of charging for care services under the 1968 Social Work ( Scotland) Act.
It makes it clear the Court of Session was wrong to restrict DRE to expenditure arising from care needs assessed by the local authority under the 1968 Act. In other words, if you get 30 hours of care per week, it was wrong in law to say DRE could only arise during those hours as opposed to the 168 hours in a week.
In my view, the judgment opens up new challenges based upon “Wednesbury reasonableness” and irrationality arguments in relation to vouching for unavoidable DRE. These are public law arguments about unlawful reasoning by councils.
The UKSC judgment clarified a number of points.
First, the onus of proof is upon the individual to satisfy the council that charges are not practicable to impose under section 87( 1A) of the 1968 Act. That means people need to provide more vouching, receipts and medical evidence to make it more difficult for councils to disregard unavoidable DRE – as opposed to discretionary spending.
The court made it clear that relevant DRE is expenditure incurred by an individual unavoidably imposed on him or her as a result of his or her disability. For example, extra heating costs, extra travel costs for medical appointments and so forth.
A local authority can consider certain welfare benefits in its calculation process.
At paragraph 49 of its judgment, the UKSC said the appellant was correct and the courts erred in law in considering that DRE could only arise from the needs as assessed by the local authority under the 1968 Act: “So long as those needs are so pressing that the relevant local authority should assess that expenditure to meet them has the effect that, to that extent, the individual means are reduced below what it would otherwise by practical for him to pay”.
The UKSC rejected the council’s argument that just because a charging policy is favourable to disabled persons that rules out future unlawful discrimination claims. If a council applies a stricter standard for allowing DRE deductions than other deductions for non- disabled persons that could constitute unlawful treatment under the 2010 Equality Act.
What we know is this. Most Scottish councils aren’t taking any DRE into consideration. That can and should be challenged.