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

A local authority assessing charges for community care services may consider a disabled person’s income and capital, including welfare benefits. Expenditure occasioned by disability reduces available means only where the authority assesses that it makes payment of the charge impracticable. It need not relate to needs covered by the authority’s support plan.

Favourable treatment does not become unfavourable under section 15 of the Equality Act 2010 merely because it could have been more generous. The duty to make reasonable adjustments remains distinct. It may apply where an apparently neutral practice bears more heavily on disabled people, but a practice applicable only to disabled people and conferring an advantage on them supplies no comparative disadvantage under section 20(3).

A disabled adult received community care services from Glasgow City Council. Under section 87 of the Social Work (Scotland) Act 1968, the Council assessed his means and charged for those services. His guardian argued that further expenditure connected with his disability should have been deducted and that the Council had discriminated contrary to sections 15, 20 and 21 of the Equality Act 2010.

The Outer House dismissed the judicial review claim: [2019] CSOH 109. The Inner House dismissed the appeal on its merits: [2020] CSIH 51. The Supreme Court considered the meaning of disability-related expenditure under section 87, whether the Council had treated the service user unfavourably under section 15, and whether its charging practice caused a comparative substantial disadvantage under section 20(3).

1. Appeal dismissed unanimously. Lord Sales delivered the judgment, with which Lord Reed, Lord Lloyd-Jones, Lord Burrows and Lord Stephens agreed. The grounds under sections 15 and 20 of the Equality Act 2010 failed, although the Supreme Court’s reasons differed from those of the courts below.

2. Section 87(1) of the Social Work (Scotland) Act 1968 leaves the local authority to decide whether to charge for community care services and what amount is reasonable. Under section 87(1A), the individual bears the onus of satisfying the authority that his means make it impracticable to pay the amount otherwise due. Both evaluations remain subject to ordinary public law requirements.

   “Disability related expenditure” is not a statutory term. It describes expenditure so unavoidably imposed by disability that the authority judges the corresponding resources unavailable for paying the charge. Such expenditure need not meet needs already assessed under sections 12 and 12A or addressed by the support plan. Lady Wolffe’s contrary limitation was wrong. The authority may take welfare benefits into account and may consider the recipient’s discretion over their use.

3. For section 15, the relevant treatment was the Council’s application of section 87, including its assessment of allowable deductions. Unfavourable treatment requires comparison between the claimant’s actual position and the position without the alleged treatment. No named non-disabled comparator is essential.

   The Council applied the same basic charging scheme to disabled and non-disabled recipients while allowing disabled recipients an additional category of deductions. That was favourable treatment. Applying the approach in Trustees of Swansea University Pension and Assurance Scheme v Williams [2018] UKSC 65, a benefit is not unfavourable merely because it could have been more advantageous. A different case might arise if disability-related expenditure were subjected to a stricter standard than other necessary expenditure, but no such case had been advanced. The proportionality defence under section 15(1)(b) therefore required no decision.

4. Failure under section 15 does not entail failure under section 20. Section 20(3) can address an apparently neutral provision, criterion or practice which bears more heavily on disabled people. Because section 87 conferred discretion, the Council could adopt a practice of its own for section 20 purposes.

   The inferred practice of rejecting costs unrelated to disability, met by benefits, or discretionary and unnecessary applied only to disabled people and afforded them a potential additional deduction. It therefore created no comparative disadvantage. The reasonable-adjustment ground failed without consideration of the remaining issues.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously: [2023] UKSC 1. The court upheld the result below for different reasons.
2. Inner House of the Court of Session: The Second Division rejected the alternative-remedy objection but dismissed the appeal on its merits: [2020] CSIH 51; 2021 SC 107.
3. Outer House of the Court of Session: Lady Wolffe dismissed the judicial review claim, principally because an alternative remedy was available, and also gave reasons for rejecting its merits: [2019] CSOH 109; 2020 SLT 41.