KM, R (On the Application Of) v Northamptonshire County Council (Rev 1)

Local-authority charging policies for non-residential social care must comply with the Secretary of State’s guidance and explain clearly how protected income is calculated. The protected amount must include the relevant Income Support allowances and premiums, together with the required 25% buffer, subject to the guidance’s stated exceptions. A council cannot rely on an unexplained general figure or on a supposed absence of difference between excluding an allowance and including it within protected income. The court reviews the legality and clarity of the policy, rather than calculating an individual’s final contribution.

The claimant, a disabled adult receiving non-residential social care services from Northamptonshire County Council, challenged the legality of the Council’s Fairer Contributions Policy. She argued that the policy failed to implement the Secretary of State’s charging guidance, particularly in relation to the calculation of protected income, the support component of employment support allowance and the enhanced disability premium.

The Council argued that the claim was premature and that the relevant figures could be resolved through an individual financial assessment. The central issues were the meaning of the national guidance, whether the Council’s policy reflected it, and whether the policy explained its method with sufficient clarity.

1. The claim succeeded. The court was concerned with the legality of the charging policy, not with determining the precise contribution payable by the claimant.

2. Under Health and Social Services and Social Security Adjudications Act 1983, section 17, a charge must be reasonable and must not exceed what it is reasonably practicable for a person of insufficient means to pay. Under section 7(1) of the Local Authority Social Services Act 1970, the Council had to act under the general guidance of the Secretary of State.

3. The guidance was not binding as secondary legislation, but a departure from it required a cogent reason. The greater the departure, the more compelling the reason needed to be. The court applied the approach endorsed in R (on the application of X) v London Borough of Tower Hamlets, [2013] EWCA Civ 904.

4. The Council’s policy was defective because it did not explain how the personal allowance, or protected income, was calculated. It did not tell claimants whether relevant premiums were included, whether the severe disability premium was excluded, or how the policy interacted with the national guidance. Reading the two documents together could not cure an inconsistency or a lacuna in the published policy.

5. The support component had to be assessed by reference to the actual amount paid under the relevant regulations, rather than an unexplained general figure. The guidance required the Council either to exempt relevant additional income from charges or to ensure that charges did not reduce income below the basic level of Income Support plus 25%. The enhanced disability premium was not among the disability-related benefits identified as capable of exclusion in the relevant guidance provisions.

6. The Council’s double-counting argument was untenable. Excluding an amount from total income was materially different from including it in total income but also including it within the protected figure. The court therefore granted relief in principle and reserved the precise form of relief for further submissions.

First-instance judicial review proceedings. The judgment does not state any subsequent appellate history.