YVR (R on the application of) v Birmingham City Council

A local authority’s power to charge for adult social care is discretionary and must be exercised consistently with ordinary public law principles, the statutory scheme and relevant Government guidance. A policy which defaults to charging the statutory maximum must not be adopted without considering the particular position of people permanently excluded from work by severe disability. However, discrimination is not established merely because earned income is disregarded while benefits income is assessed: the statutory schemes must be considered as a whole, and any alleged disadvantage must be evidenced by a relevant comparison. In exceptional financial circumstances, maintaining the statutory maximum charge may pursue a legitimate and sufficiently important aim. The court must assess whether less intrusive alternatives were realistically available and whether the impact is disproportionate.

The claimant, a severely disabled adult unable to work, challenged Birmingham City Council’s adult social care charging policy. The policy assessed his benefits income, subject to statutory disregards and a minimum income guarantee, and charged him the maximum amount permitted by the Care Act 2014 and associated Regulations.

He alleged discrimination contrary to article 14 of the Convention, read with article 1 of Protocol 1, indirect discrimination under the Equality Act 2010, and breach of the public sector equality duty. He relied particularly on R (SH) v Norfolk County Council. The central issues were whether the policy discriminated against people unable to work because of severe disability, whether any difference in treatment was justified, and whether the Council had complied with its equality duty.

1. Claim dismissed. The Council’s charging policy was not unlawful discrimination and the public sector equality duty challenge was not made out.
2. For article 14 purposes, inability to work by reason of severe disability was an objectively determinable “other status”. The court proceeded on the basis that the Council’s failure to make special provision for that group engaged the Thlimmenos form of discrimination, namely failure to treat differently persons whose situations were significantly different.
3. The comparison relied on in Norfolk was problematic. The difference between earners and non-earners was principally produced by the statutory earnings disregard, rather than by the Council’s policy. The claimant had not established, by evidence or a properly controlled comparison, that the Council’s policy itself treated people unable to work by reason of severe disability less favourably than relevant comparators.
4. Nevertheless, the Council had to consider its discretionary powers, including the power under regulation 15(2) to disregard additional sums and the guidance encouraging protection of disposable income. A default assumption that all income above the minimum income guarantee was available for charges would be inconsistent with the guidance. The duty was one to consider the available options in the local context, not to achieve complete equalisation.
5. The Council’s exceptional financial crisis supplied a legitimate and important aim. Maintaining the charging policy was rationally connected to the need to make substantial savings and restore a balanced budget. The evidence established that Birmingham had no realistic alternative capable of achieving the same balance between revenue and expenditure without further reducing social care provision or obtaining funding from elsewhere.
6. The final proportionality balance favoured the Council. The claimant’s eligible needs were being met, his income was protected by the statutory scheme, and the severity of the alleged relative impact was not clearly evidenced. The Council’s decision was not manifestly without reasonable foundation and fell within the latitude accorded to social and economic policy judgments.
7. The Council had made an effective 2023 decision following review of the policy. Its review expressly considered the equality issues, the Norfolk judgment, and the available alternatives. The public sector equality duty had therefore been considered with sufficient focus and rigour.