SH, R (On the Application Of) v Norfolk County Council & Anor (Rev 1)

A charging policy may indirectly discriminate under Article 14 where uniform rules impose a disproportionate burden on a protected group. The comparison is between persons in analogous situations, and exact statistical evidence is unnecessary where the disparate impact is apparent. Severe disability is capable of constituting “other status” when the relevant level of disability is objectively ascertainable. The justification required is justification for the difference in treatment, rather than for the charging policy in the abstract. In welfare and social-care cases, the court applies the manifestly without reasonable foundation standard while considering whether the objective is important, the measure rationally connected, less intrusive alternatives were available, and the effects are proportionate. A council’s failure to consider the discriminatory impact and an alternative charging method may make the policy unlawful.

SH, a severely disabled young woman, sought judicial review of Norfolk County Council’s decision to alter its non-residential social-care charging policy. The changes reduced the Council’s minimum income guarantee and brought her Personal Independence Payment daily-living component into the means assessment, substantially increasing her charges.

She alleged indirect discrimination under Article 14 of the Convention read with Article 1 of the First Protocol, and under sections 19 and 29 of the Equality Act 2010. Permission had been refused on the challenge to regulation 14 of the Care and Support (Charging and Assessment of Resources) Regulations 2014. The central issue was whether the policy’s disproportionate impact on severely disabled people was objectively justified.

1. Claim allowed. The Council’s charging policy unlawfully discriminated against SH, and relief was to be agreed, including setting aside the charging decision and removing the discriminatory impact from the policy.
2. SH’s circumstances fell within the ambit of Article 1 of the First Protocol. Severe disability was an “other status” under Article 14. The status was sufficiently ascertainable through entitlement to enhanced-rate benefits reflecting severe functional limitations.
3. The relevant comparison was between severely disabled people with high needs-based benefits and no access to employment earnings, and other recipients of Council services. Applying the same rules to everyone did not prevent a finding of different treatment where the rules had a disparate impact. Detailed statistical evidence was unnecessary because the impact was apparent from SH’s case.
4. The Council’s aims of fair resource allocation, encouraging independence, maintaining a sustainable charging regime and following the statutory scheme were legitimate. However, the relevant question was whether the discriminatory difference in treatment, not merely the policy overall, was justified.
5. The court applied the manifestly without reasonable foundation standard and considered the four Bank Mellat questions: importance of the objective, rational connection, less intrusive alternatives and overall balance. The discriminatory impact was not rationally connected to the aims. The Council had not consciously considered it and had not considered the alternative of limiting the percentage of disposable income taken into account, suggested by the Guidance. The impact was serious, unnecessary and wholly disproportionate.
6. The court considered the Equality Act ground overlapped with Ground 1. Relief under the Convention ground was therefore decisive. The parties were invited to agree consequential matters, including costs.

First-instance judicial review proceedings. The judgment records that Lewis J granted permission on two grounds and refused permission on a separate challenge to regulation 14 of the Care and Support (Charging and Assessment of Resources) Regulations 2014.