C, R (on the application of) v North Tyneside Council

A social services authority may ordinarily assume that no specific housing-cost allowance is required when a community care user lives with parents, close relatives or informal carers and has no legal liability to a third party for mortgage, rent or council tax. Basic-rate ESA is treated as containing an element for ordinary household and relevant housing expenditure. Exceptional circumstances, such as additional housing needs arising from disability, may require consideration of an allowance. A policy is unlawful if it distinguishes between users whose informal carers receive housing benefit and users whose carers do not, without legal justification, because the assessment must focus on the service user’s financial circumstances.

C challenged North Tyneside Council’s decision to charge her £19.51 per week for community care services. She was an adult with Down’s syndrome and a moderate learning disability who lived with her parents, who owned the family home. The Council’s assessment allowed the applicable amount plus buffer, together with specified disability-related disregards, but made no housing-cost allowance.

The challenge concerned the Council’s policy that it would consider an allowance where a service user lived with relatives receiving housing benefit and council tax benefit, but would not consider one where the relatives were not receiving those benefits. The central issue was whether that distinction unlawfully fettered the Council’s charging discretion.

1. The application was allowed. The decision dated 17 August 2011 was quashed and the matter was referred back to the Council for reconsideration and a fresh charging decision.
2. Under section 17 of the Health and Social Services and Social Security Adjudications Act 1983, a local authority may charge for relevant community care services where the charge is reasonable and the user has means to pay. In exercising that discretion, the authority must comply with section 7(1) of the Local Authority Social Services Act 1970 and the Secretary of State’s 2003 guidance.
3. A social services authority is entitled, in the ordinary case, to assume that no specific housing allowance or disregard is required for a user living with parents, close relatives or other informal carers where the user has no legal obligation to a third party for mortgage, rent or council tax. The basic rate of ESA contains a sufficient element for relevant household housing expenditure. The position is stronger where the user has income above basic-rate ESA.
4. That general approach does not exclude exceptional cases. An authority may need to consider an additional allowance where, for example, the user has additional housing needs arising from disability. No such exceptional circumstances were established here.
5. The Council’s distinction between users living with carers receiving housing benefit and users living with carers not receiving it was irrational. The charging assessment must focus exclusively on the user’s financial position, and no justification for the distinction had been shown. The Council therefore had to reconsider its policy and the charge.
6. Costs were ordered on an issue-dependent basis: the Council was to pay the claimant’s costs of the narrow successful issue, while the claimant was to pay the Council’s remaining costs.

This was a first-instance judicial review in the Administrative Court. No prior appellate decision is stated in the judgment.