Michael Sherratt, R (on the application of) v Bolton Council

Disability-related expenditure (“DRE”) is not confined to expenditure identified in a statutory care plan or necessary for the provision of care and support. The statutory scheme requires a flexible, individualised assessment of reasonable additional costs directly related to disability. The inclusion of transport costs within the mobility element of personal independence payment does not, of itself, prevent those costs from being DRE.

Where a defendant withdraws and undertakes to reconsider an unlawful decision during judicial review proceedings, and the agreed outcome substantially reflects the pleaded relief, the claimant may be entitled to costs. An alternative remedy argument should ordinarily be raised at the permission stage. An interim payment on account of costs may be ordered subject to a professionally drawn bill.

The claimant challenged Bolton Council’s assessment of his contribution towards care and support costs. The Council had treated expenditure such as transport, parking, branded food, personal assistant lunches and gym membership as incapable of being disability-related expenditure because it was not sufficiently related or attributable to the care plan, and because transport costs were said to be covered by the mobility element of personal independence payment.

Permission for judicial review was granted on 31 January 2024. Before the substantive hearing, the parties agreed that the claim would be withdrawn, that the assessments would be withdrawn and reconsidered, and that the Council would review its policies. The remaining issue was costs.

1. Outcome. The claim was withdrawn by consent. The Council agreed to withdraw and reconsider the challenged financial assessments, reimburse any expenditure found to be DRE with interest, and review its policies for compatibility with the Care and Support Statutory Guidance.
2. DRE assessment. The statutory scheme requires the authority to disregard DRE when disability benefits are taken into account in assessing income. DRE is not confined to expenditure on a specified need identified in a statutory needs assessment or care plan. The concept requires a relationship between the expenditure and the person’s disability, and the statutory guidance requires flexibility. Expenditure should not be limited to what is necessary for care and support.
3. Transport expenditure. The fact that transport expenses are included in the mobility element of personal independence payment is not, of itself, a lawful ground for excluding them from DRE. The claimed categories of expenditure were potentially capable of being DRE, subject to lawful reconsideration.
4. Costs. The claimant achieved, in substance, the relief pleaded. The Council’s approach had asked an unduly restrictive legal question and amounted to a material public law error. The alternative remedy argument did not justify depriving the claimant of costs. It could have been raised at the permission stage, and the court was confident it would have rejected it on the facts. The Council was ordered to pay the claimant’s reasonable costs on the standard basis, subject to detailed assessment.
5. Interim payment. Pursuant to CPR r 44.2(8), the Council was ordered to pay 60% of the costs schedule on account, within 14 days after service of a professionally drawn schedule.

This was a first-instance judicial review claim. Permission was granted by Deputy High Court Judge Karen Ridge on 31 January 2024. Before the substantive hearing, the claim was withdrawn by consent and the High Court determined the contested costs issue.