Stephenson, R (on the application of) v Stockton On Tees Borough Council

A local authority may adopt a general policy that payments for care provided by a family member will not ordinarily count as disability-related expenditure when assessing charges for non-residential social services. The policy must remain a policy, not an inflexible rule. The authority must consider whether the particular circumstances make the care non-voluntary or otherwise exceptional, and must exercise its discretion individually. Treating the family-member policy as an automatic bar is unlawful. The policy is not inherently irrational or inconsistent with statutory guidance, but its exceptions cannot be confined narrowly to race, religion or ethnicity.

The appellant, an elderly woman receiving home care support from the respondent council, paid her daughter for care which included substantial assistance and travel. The council included disability benefits in the appellant’s income assessment but disregarded the payment to her daughter under its general family-member policy. The High Court dismissed the judicial review claim, including the challenges based on irrationality and Articles 8 and 14 of the European Convention on Human Rights. On appeal, the appellant argued that the policy had been unlawfully applied and amounted to a substantially different course from the Secretary of State’s guidance. The central issue was whether the council had lawfully exercised its discretion on the particular facts.

1. Appeal allowed and decision quashed. The council had power under Health and Social Services and Social Security Adjudications Act 1983, s 17(1), to recover such charge for its services as it considered reasonable. That discretion was subject to conventional public law control and to the general guidance required by s 7(1) of the Local Authority Social Services Act 1970.
2. The council’s family-member policy was lawful in principle. It could proceed on the general premise that close relatives ordinarily provide care voluntarily and without charge. The policy was not irrational merely because it distinguished family care from privately arranged professional care.
3. The policy was not absolute. Where family care was not in reality voluntary, or where exceptional or particular circumstances existed, the council had to consider whether an exception should be made. “Cultural issues” could not be confined to race, religion or ethnicity; the expression could include issues arising within the relationship between the particular family members.
4. On the facts, the daughter had reduced and then left employment, travelled a substantial distance, and was paid pursuant to a genuine arrangement insisted upon by the appellant. The council accepted that the relevant services were disability-related and that equivalent professional care would have cost more. These highly unusual circumstances required careful consideration of whether the policy’s exception applied.
5. The council had not exercised that discretion. Its decision letter treated the family-member policy as a general rule and gave no analysis to the arrangements or unusual facts. The decision was therefore either a failure to exercise the discretion or a plainly flawed exercise of it and could not stand. The policy was not an impermissible substantially different course from the guidance, but it could not be applied rigidly.
6. The Article 14 challenge failed. The court inclined to agree that Article 8 was not engaged, but found it unnecessary to decide the Convention issue because the domestic public-law error disposed of the appeal. The matter was to be reconsidered; the question of remitting arrears was left for discussion and, if necessary, further order.

1. Court of Appeal (Civil Division) — [2005] EWCA Civ 960: appeal allowed and the council’s decision quashed.
2. Administrative Court, Queen’s Bench Division — Mr Justice Keith dismissed the judicial review claim on 12 October 2004. The appeal was heard on its merits despite the appellant’s subsequent move outside the council’s area because a point of principle remained and arrears were in issue.