McCue (as guardian for Andrew McCue) v Glasgow City Council (Scotland)

This appeal concerned the interaction between the Social Work (Scotland) Act 1968 (in particular sections 12, 12A and 87) and the Equality Act 2010 (notably sections 15 and 20) in the context of charging for community care services. The Supreme Court held that the Council's charging regime, and the way it allowed for "disability related expenditure" in assessing an individual’s available means under section 87(1) and (1A) of the 1968 Act, did not amount to unlawful discrimination under section 15 of the Equality Act: the Council’s approach was a favourable adjustment for disabled persons and the claimant’s complaint amounted to a call for greater generosity rather than proof of unfavourable treatment.

The Court also rejected the claim under section 20 (duty to make reasonable adjustments). The alleged provision, criterion or practice (the Council’s approach to deciding which items of expenditure to treat as disability related expenditure) did not put the claimant at a substantial disadvantage in comparison with non-disabled persons; alternatively, the particular practice identified only applied to disabled persons and therefore did not found a s.20(3) comparator-based claim.

Background and parties:

• The appellant, Mrs Terri McCue as guardian for her adult son Andrew McCue (who has Down’s Syndrome), challenged Glasgow City Council’s assessment of charges for non-residential community care services provided under the Social Work (Scotland) Act 1968. The dispute concerned what items of the appellant’s expenditure should be deducted as "disability related expenditure" when calculating his available means for charging under section 87 of the 1968 Act.

Procedural posture:

• The appellant sought judicial review of the Council’s policy and charging decisions, alleging breaches of the Equality Act 2010 (sections 15 and 20 read with section 21). The Outer House (Lady Wolffe) dismissed the claim; the Inner House dismissed the appeal ([2020] CSIH 51; 2021 SC 107). The matter proceeded to the Supreme Court ([2023] UKSC 1).

Nature of the claim and relief sought:

• The appellant sought a declaration that the Council’s charging policy and its particular assessment of Mr McCue’s means unlawfully discriminated against him on grounds of disability and breached the duty to make reasonable adjustments, and in consequence that the Council should have made greater deductions for disability related expenditure (reducing or eliminating the charge).

Issues framed by the Court:

• How section 87(1) and (1A) of the 1968 Act operate in practice when a local authority assesses available means and discretionary deductions for disability related expenditure.
• Whether the Council’s conduct and charging policy amounted to unfavourable treatment arising from disability within the meaning of section 15 of the Equality Act 2010.
• Whether a provision, criterion or practice (PCP) of the Council put the appellant at a substantial disadvantage compared with non-disabled persons such that the duty to make reasonable adjustments under section 20 applied.

Reasoning and conclusions:

• The Court explained that "disability related expenditure" is not a statutory term but a practical descriptor used by guidance (COSLA) and local policy to identify expenditure which may properly be disregarded when assessing ability to pay under s.87(1A). The correct legal question under s.87(1A) is whether the local authority is satisfied that, after taking account of such expenditure, it is not reasonably practicable for the person to pay the charge; the onus is on the individual to satisfy the authority.
• On section 15, the Court held the relevant treatment was the Council’s application of s.87 to assess the charge and what deductions to make. The Council’s approach, which allows deduction for disability related expenditure where appropriate, is a favourable adjustment for disabled persons and the appellant’s complaint amounted to a claim it should have been more generous. That alone does not constitute "unfavourable treatment" for the purposes of s.15; accordingly the section 15 claim failed.
• On section 20, the appellant relied on an asserted PCP (summarised in the Council’s pleading) as putting the appellant at a substantial disadvantage. The Court found that that stated practice applied only to disabled persons (or operated to benefit them) and so did not found the s.20(3) comparator exercise; accordingly the duty to make adjustments was not breached by the Council’s approach. The appeal was dismissed.

Wider observations:

• The Court emphasised that local authorities retain a discretion under s.87 to assess charges having regard to public funds and the individual’s means, subject to public law duties and the Equality Act obligations. The decision notes the role of COSLA guidance and local policy in informing consistent practice, but treats the questions as evaluative matters for the authority unless public law or statutory equality duties are breached.

Appeal dismissed. The Supreme Court held that (i) "disability related expenditure" is a non-statutory descriptor used to identify expenditure that a local authority may discount when assessing a person’s ability to pay under section 87(1) and (1A) of the Social Work (Scotland) Act 1968; (ii) the Council’s charging approach, including provision for certain deductions, was a favourable adjustment for disabled persons so did not constitute unfavourable treatment under section 15 of the Equality Act 2010; and (iii) the practice relied on under section 20 did not put the appellant at a substantial disadvantage in comparison with non-disabled persons, so the duty to make reasonable adjustments was not breached.

Outer House (Lady Wolffe) dismissed claim [2019] CSOH 109; 2020 SLT 41. Inner House (Second Division) dismissed appeal [2020] CSIH 51; 2021 SC 107. Appeal to the Supreme Court allowed hearing and judgment given [2023] UKSC 1 (appeal dismissed).