In this post, Erin Crawley, a trainee solicitor in the Infrastructure, Construction and Energy Disputes team at CMS, comments on the case of McCue (as guardian for Andrew McCue) v Glasgow City Council  UKSC 1.
On 11 January 2023, the Supreme Court unanimously dismissed the appeal in McCue (as guardian for Andrew McCue) v Glasgow City Council  UKSC 1, finding that Glasgow City Council’s (“the Council”) charging policy for community care services was not discriminatory. The decision, in favor of the Council, was handed down approximately two months after the case was heard by the Supreme Court.
Terri McCue brought the case on behalf of her adult son, Andrew, who has Down’s Syndrome and is disabled within the meaning of the Equality Act 2010 (“the 2010 Act”), s 6. As a result of his disability, Andrew is entitled in law to community care services from Glasgow City Council, for which the Council is able to seek a contribution from him, in terms of the Social Work (Scotland) Act 1968 (“the 1968 Act”), s 87. Any contribution sought must be reasonable, and the service user must be able to meet it.
The Council bases its charging policy on a minimum income threshold, which is set in reference to guidance from the Convention of Scottish Local Authorities and linked to rates set by the Department for Work and Pensions. If the Council is satisfied that a service user meets its minimum income threshold and as a result should pay a contribution to its care services, it can then apply certain deductions to reduce such contributions. This can include any disability related expenditure (“DRE”).
The Council therefore levied charges for Andrew’s community care services by assessing his means and ability to pay. It was Mrs McCue’s position that in calculating the charges, the Council failed to make sufficient deductions from her son’s assessable income in relation to his DRE. Despite repeated representations to the Council by Mrs. McCue on her son’s behalf over several years, the Council was not persuaded, save for a minimal deduction, to reduce the charges.
In failing to make these deductions and therefore lowering the charges levied for the community care services, Mrs McCue contended that the Council both unlawfully discriminated against her son on the grounds of his disability within the meaning of the 2010 Act, s 15, and breached their statutory duty to make reasonable adjustments in light of her son’s disability under the 2010 Act, s 20.
Decision of the Lower Courts
At first instance, the Outer House of the Court of Session dismissed Mrs McCue’s claim, agreeing with the Council’s argument that Mrs McCue had a suitable alternative remedy in the form of an application to the Scottish Public Services Ombudsman, which she should have pursued.
The Lord Ordinary also provided reasons for why she would have dismissed the claim based on its merits in any event. Specifically, Mrs McCue did not contest the appropriateness and adequacy of the Council’s support plan, and her failure to do so undermined her claim. In the Lord Ordinary’s view, DRE is the “additional expenditure incurred as a consequence of disability and used to meet the assessed needs of the individual in receipt of social care”. Considering that the support plan was accepted as fully meeting Andrew’s needs, it was determined that the additional expenses claimed for did not qualify as the relevant DRE.
Mrs McCue appealed to the Inner House of the Court of Session, which dismissed the appeal on its merits. Mrs McCue argued that the Council’s policy document failed to positively protect her son’s income from reduction due to expenses incurred in connection with his disability and therefore was discriminatory under the 2010 Act.
However, the Inner House determined that the policy document was not discriminatory, and that Mrs McCue’s argument improperly sought to rely on the 2010 Act for payment of sums as DRE, independently of the Council’s statutory obligations under the 1968 Act, s 87. The Inner House held that the statement in the policy document was intended to enable the Council to fulfill its obligations under the 2010 Act, and that the 2010 Act does not create a separate obligation for the Council to pay for DRE not related to services provided under the 1968 act.
Supreme Court Decision
Mrs McCue proceeded to appeal to the Supreme Court, which dismissed the appeal on grounds differing from the courts below.
The 1968 Act, s 87: charge for community care services
Pursuant to the 1968 Act, s 87, local authorities have discretion to impose a charge for community care services provided and decide at what level the charge should be set. Such a charge, if imposed, must be reasonable and commensurate with the individual’s means. In the event that an individual demonstrates that their means are insufficient such that it would be impractical for them to pay the charge, the authority is precluded from imposing a charge in excess of what is reasonably practical for the individual to pay.
The burden of proof in regard to an individual’s inability to pay falls upon the individual.
In this case, the Council determined that Andew’s means were not so affected as to reduce what was reasonably practical for him to pay in relation to the disputed items of DRE. The Supreme Court held that the Council had properly applied the relevant tests in the 1968 Act, Ss 87(1) and 87(1A) and had not acted in a way that was either irrational or unlawful.
The 2010 Act, s 15: unfavorable treatment
It was accepted that Mrs McCue’s son is disabled for the purposes of the application of the 2010 Act, s 15. The central question was whether the Council had treated Mr McCue’s son unfavorably due to his disability, in terms of the 2010 Act, s 15 (1)(a). The Supreme contender Courted that to determine this, a comparison had to be drawn between the actual treatment received by Mrs McCue’s son and what would have occurred in a hypothetical scenario without the alleged unfavorable treatment. It was not necessary to identify a non-disabled comparator to establish unfavorable treatment. The comparison raised two fundamental questions of fact: (i) what was the relevant treatment and (ii) was it unfavorable to Mrs. McCue’s son?
The relevant treatment in this case was the Council’s application of the 1968 Act, s 87 in determining the charges for services provided to Mrs. McCue’s son and evaluating her available means. The Council applied the same basic charging scheme to both disabled and non-disabled individuals and indeed extended a more generous approach to disabled individuals to account for DRE. The Supreme Court held that this approach cannot be considered unfavorable to disabled individuals as it allows for a greater range of deductions to be made when calculating their available means. Therefore, Mrs McCue’s complaint that the treatment was not generous enough did not constitute a valid ground of complaint in terms of the 2010 Act, s 15.
The 2010 Act, s 20: duty to make adjustments
In its provision of community care services to Mrs McCue’s son, the Council was acting within the scope of the 2010 Act, Pt 3. It therefore had a duty to make reasonable adjustments in accordance with the 2010 Act, s 20.
Mrs. McCue sought to rely on the 2010 Act, s 20(3), stipulating that when a provision, criterion, or practice of the Council puts a disabled person at a substantial disadvantage in comparison to a non-disabled person, the Council must take reasonable steps to eliminate or mitigate that disadvantage. The Supreme Court found that it was reasonable to infer that the Council had implemented a practice of rejecting certain expenditures. This practice meant that expenses were rejected if they were not directly related to the individual’s disability, were covered by other forms of financial assistance, or were deemed discretionary and not necessary to meet the individual’s specific needs related to their disability. The Supreme Court held that this practice was not unfavorable to disabled people, because it only applies to disabled people, therefore no comparison could be made with non-disabled people. As a result, the Supreme Court held that the 2010 Act, s 20(3) could not apply. Instead, it was held that the practice of allowing deductions at all actually confers an advantage on disabled people.
In dismissing the appeal, the Supreme Court held that that the Council’s approach to assessing Andrew’s means was not discriminatory and that the Council had fulfilled its duty to make reasonable adjustments under the 2010 Act. The Supreme Court found that the Council had properly considered the impact of Andrew’s disability on his expenditure and had made reasonable deductions.
The decision sets a precedent for how local authorities in the UK should approach the assessment of charges for community care services provided to disabled persons under the 1968 Act and the 2010 Act. The judgment confirms that local authorities have discretion over whether to charge for services and at what level, but that the onus is on the individual to show that their means are insufficient for them to pay the charges. The court also confirms that local authorities should consider the impact of the disability on the individual’s expenditure and accordingly make reasonable deductions.
The case illustrates the need for local authorities to have policies in place which do not discriminate against disabled persons in assessing charges and confirming that an account should be taken of DRE in the calculation of what is reasonably practical for the individual to pay. This means that local authorities should have policies in place to ensure that they are not treating disabled persons unfavorably when assessing charges for community care services.
Overall, the case provides guidance for local authorities in the UK on how to approach the assessment of charges for community care services provided to disabled persons in a way that is compliant with the 1968 Act and the 2010 Act.