R (SH) v Norfolk County Council

The claimant challenged Norfolk County Council's change to the way it calculated means-tested charges for non-residential care. The claim was brought under Article 14 read with Article 1 of Protocol 1 of the European Convention on Human Rights and, in the alternative, under the Equality Act 2010.

The court found that the claimant had "other status" as a severely disabled person and that the Charging Policy produced a disparate impact on severely disabled people because it took into account higher needs-based benefits (notably the PIP daily living component) while excluding earnings from employment (which the most severely disabled cannot obtain). Applying the established Article 14 justification test (including the "manifestly without reasonable foundation" standard), the judge held the differential treatment was not objectively justified: the Council had not considered less intrusive alternatives (including the approach suggested in the Secretary of State's Guidance at para 8.47) nor explained a rational connection between its stated aims and the specific discriminatory effect.

Accordingly the claim succeeded and relief was awarded to set aside the Council's decision(s) under the Charging Policy, require amendment/withdrawal to remove the discriminatory impact and to record a declaration of breach of Article 14 read with A1P1.

This is a first instance judicial review of Norfolk County Council's Adult Social Services Non-Residential Charging Policy (April 2019) and its phased introduction of changes which included (i) reducing the Council's internal minimum income guarantee (MIG) and (ii) bringing the enhanced daily living component of Personal Independence Payment into account when means-testing charges.

• Parties and posture: The claimant (SH), a young woman with Down Syndrome, sued the Council; the Secretary of State for Health and Social Care filed an acknowledgment but took no part in the hearing after permission on the regulation 14 challenge was refused at an earlier stage. The claimant proceeded by way of judicial review in the Administrative Court.
• Relief sought: setting aside the Council's charging decision(s), requiring amendment or withdrawal of the Charging Policy to remove discriminatory effect, a declaration that Regulation 14 of the Charging Regulations is discriminatory, consequential relief and costs.
• Issues framed: (1) whether the facts fell within the ambit of Convention rights; (2) whether the claimant had an Article 14 status (severely disabled); (3) whether there was differential treatment between analogous groups; and (4) whether any difference was objectively justified.

The court accepted that the facts fell within the ambit of A1P1. It held that "severely disabled" qualified as an ascertainable "other status" for Article 14 purposes, noting the claimant's assessed entitlements (ESA support group with enhanced premium and enhanced PIP daily living component) which were capable of independent assessment. The judge found that, although the Charging Policy applied equally to all recipients, it had a disparate impact on the severely disabled because such persons receive higher needs-based benefits that were assessable while being unable to obtain earnings which are by law disregarded. The council's decision-making documents had not identified or justified that differential impact, nor had the council considered the Guidance's suggested less intrusive alternative of capping the percentage of disposable income taken in charges.

Applying the Bank Mellat/Breaches justification framework and the "manifestly without reasonable foundation" standard, the court held the Council's differential treatment was not rationally connected to its legitimate aims (apportioning resources, encouraging independence, sustainability and compliance with the statutory scheme), was not proportionate, and was not supported by adequate consideration of less intrusive measures. The claim therefore succeeded and the court ordered relief to address the discriminatory impact and to record a declaration that the Charging Policy breached Article 14 read with A1P1.

This was a first instance judicial review in which the claim succeeded. The court held that the Charging Policy produced indirect discrimination against the claimant as a severely disabled person contrary to Article 14 read with Article 1 of Protocol 1. The discriminatory effect was not objectively justified and was manifestly without reasonable foundation because the Council had not rationally connected its aims to the specific discriminatory impact, had not considered less intrusive alternatives (including the approach suggested in the Secretary of State's Guidance), and had overlooked the disproportionate burden on those with high needs and no earning capacity. The court granted relief to set aside the relevant Council decisions, to require amendment/withdrawal of the policy to remove the discriminatory impact, and to make a declaration of breach.

First instance judicial review in the Administrative Court. Lewis J made orders on 29 June 2020 anonymising the claimant and refused permission on the ground of challenge relating to the Secretary of State; the claim proceeded against the Council and was heard before Griffiths J on 2–3 December 2020, leading to this judgment dated 18 December 2020.