The recent decision of the High Court in England and Wales of SH v. Norfolk County Council & Others reinforces the importance of public authorities carefully considering equalities and human rights legislation when making policy and budgeting decisions.
The case concerns a judicial review brought on behalf of SH ('the claimant') against a decision of Norfolk County Council ('the defendant'). The focus of the claimant's argument was that the defendant had indirectly discriminated against her in the manner it charged for her Council-provided care.
The claimant is a 24-year-old woman living with Down Syndrome. She has severe learning difficulties and physical disabilities associated with Down Syndrome. As a consequence of her disabilities she is unable to work and her sole income is from the following benefits:
- Employment Support Allowance ('ESA')
- Personal Independence Payment (daily living component) ('PIP')
- PIP (mobility component)
As of April 2020, her income from these benefits totalled £282.05 per week. In addition to these benefits, the claimant received support from the defendant in the form of respite care, day services and a personal assistant. As of February 2020, the claimant cost the defendant on average £356.49 per week.
The defendant charges for the claimant's care services on a means tested basis – it is the change in this charging policy that was being challenged by the claimant. Under the defendant's amended charging policy, the amount which the claimant would have to contribute to her Council care services was to rise from £16.88 per week to £50.83. This substantial increase was caused by the defendant, amongst other things, now taking into account the income the claimant received in the form of PIP (daily living component).
The legal challenge
The claimant's legal challenge was as follows:
- The defendant's charging policy discriminates against severely disabled people contrary to Article 14 (protection from discrimination) read with Article 1 Protocol 1 (protection of property), failing which, Article 8 (right to private and family life) of the European Convention on Human Rights ('the ECHR').
- The defendant's charging policy indirectly discriminates against adults with Down Syndrome, contrary to section 19 and 29 of the Equality Act 2010 ('the 2010 Act').
It is worth noting that it was accepted that if one of the above grounds failed, the other would also fail. This meant the Court only considered the issues at 1.
As it was accepted by parties that Article 1 Protocol 1 applies, the Court proceeded to consider the claims made in relation to Article 14 of the ECHR. In doing so, the Court reiterated the approach to be taken to Article 14 claims as outlined in R (Stott) v Secretary of State for Justice  UKSC 59. The Court addressed the relevant issues identified in Stott as follows:
1. Do the circumstances "fall within the ambit" of one or more of the Convention rights?
As already accepted by parties, the Court was satisfied that the defendant's approach to the claimant's ability to pay charges falls within the ambit of Article 1 Protocol 1.
2. Has there been a difference of treatment on the ground of one of the characteristics listed in A1P1 or "other status"?
The defendant argued that 'severely disabled' was not precise enough to be considered an 'other status' for the purposes of Article 1 Protocol 1. However, the Court was satisfied that severely disabled could be an 'other status' for the purposes of Article 1 Protocol 1.
3. Has there been a difference of treatment between two persons who are in an analogous situation?
The Court held that severely disabled persons and everyone else being charged under the charging policy were in analogous situations as they were all receiving services from the Council subject to the charging policy.
4. Is there an objective justification for the difference in treatment?
The defendant submitted the following as legitimate aims, which taken together, could serve as justification for the differential treatment of the claimant:
- To apportion the Council's resources in a fair manner
- To encourage independence
- To have a sustainable charging regime
- To follow the statutory scheme
The Court acknowledged these were legitimate aims. However, the Court was not satisfied that the differential impact was rationally connected to any of the legitimate aims. The Court noted that no consideration had been given to alternative, less intrusive, means of achieving these aims.
The Court was satisfied the test in Stott had been met and granted the claimant relief.
The case serves as a reminder to public authorities of the need to be satisfied that a proposed course of action complies with equalities and human rights legislation. The Court noted in this case that the differential treatment of the claimant was 'unintended and unforeseen' –that however was no defence. Simply because some form of discrimination was not foreseen, does not necessarily mean it was not foreseeable.
The Court noted that the defendant was under severe financial pressure and the proposed policy changes would assist in alleviating that financial pressure to a small extent. However, it is important for public bodies to be aware that while decisions taken to alleviate financial pressure may amount to a legitimate aim, it will not necessarily follow that the differential treatment that may occur as a consequence can be objectively justified.
When considering objective justification of the differential treatment, the Court carefully considered the Council's decision-making records (e.g. Equality Impact Assessments). In these documents, the Council failed to focus on the differential treatment of severely disabled persons or the possibility of alternative, less intrusive, measures. Again, this is a further reminder of the importance of not only complying with equalities and human rights legislation but being able to demonstrate compliance through detailed decision-making records.