RW v Royal Borough of Windsor and Maidenhead

Disability-related expenditure is assessed by asking whether it is rationally related to a need arising from disability and whether the additional cost is reasonable. Expenditure need not be the only logically possible means of meeting the need. A cheaper alternative is relevant, but is not automatically determinative. Decision-makers must weigh suitability, outcomes, wishes and feelings, autonomy, established relationships and the likely impact of change. Disability-related expenditure is a distinct category and is not confined to expenditure forming part of the care and support package. A blanket refusal based principally on cost, without considering those matters, is unlawful.

The claimant, an autistic vulnerable adult, challenged the defendant local authority’s refusal to treat costs incurred through activities at his established social and life-skills group as disability-related expenditure under paragraph 4 of Schedule 1 to the Care and Support (Charging and Assessment of Resources) Regulations 2014. The authority argued that the activities were chosen, unnecessary, replaceable by cheaper alternatives and part of the claimant’s care and support package. The issues were whether the costs were disability-related, necessary and reasonably incurred, and outside the care and support package.

1. Decision and approach. The authority’s blanket refusal was unlawful. The court reviewed the lawfulness of the decision, rather than determining the merits of every individual expense. Substantial unlawfulness in the overall decision was sufficient to justify quashing it, and severance was inappropriate in the circumstances.
2. Disability-related expenditure. The two-part inquiry in paragraph 40 of Annex C to the Care and Support Statutory Guidance asks whether expenditure is related to the disability and whether the additional cost is reasonable. The care plan is a valuable starting point, but flexibility is required. Activities accessed through the same provider are not automatically disability-related; the assessment depends on the individual’s disability-related needs.
3. Meaning of necessary. The relevant need must first be identified. Expenditure is necessary where it is needed to meet or help alleviate that need and is closely connected to it. It need not be the only possible or logically unavoidable means of doing so.
4. Reasonableness and alternatives. Cost is important but is not the sole yardstick. A decision-maker must consider suitability, outcomes, the person’s wishes and feelings, autonomy, established relationships and the emotional and social impact of alternatives. Disability support services are not interchangeable commodities. A cheaper alternative may be unreasonable if it would cause avoidable anxiety or undermine established support and relationships.
5. Separate category. Disability-related expenditure is not limited to expenditure necessary for care and support. The Regulations and Guidance recognise additional expenditure beyond the personal budget and core care package.
6. The authority failed to consider relevant factors, gave excessive weight to financial considerations and proceeded on the mistaken basis that the activities were unrelated, unnecessary and unreasonable. The decision was quashed and remitted to the authority for reconsideration.

This was a first-instance judicial review. Permission was initially refused by a Deputy High Court Judge on 21 September 2022 and granted after an oral hearing by another Deputy High Court Judge on 24 November 2022.