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

The claimant, a protected party who is profoundly autistic and permanently unable to work, challenged Birmingham City Council’s adult social care charging policy by judicial review, arguing that it unlawfully discriminated against those who cannot work by reason of severe disability. The challenge was brought under Article 14 of the European Convention on Human Rights taken with Article 1 of Protocol 1, under the Equality Act 2010 (including the public sector equality duty in s.149), and for indirect discrimination arising from the Council’s exercise (or non‑exercise) of its discretion under the Care Act 2014 and the Care and Support (Charging and Assessment of Resources) Regulations 2014.

The court considered (i) whether the claimant’s status — being severely disabled and unable to work — fell within Article 14’s 'other status', (ii) whether there was a relevant difference in treatment when the Council’s charging policy was viewed against the statutory scheme (in particular the earnings disregard in Regulation 14 and the minimum income guarantee mechanism), and (iii) whether any difference was objectively justified and proportionate bearing in mind the Council’s legitimate aim of meeting an extreme budgetary emergency. The court also considered the comparable Norfolk authority and the proper operation of the public sector equality duty.

Applying the Bank Mellat/Balancing test, the judge accepted that the Council’s financial recovery and budget‑balancing aim was legitimate and of substantial importance, that the policy was rationally connected to that aim and that, given Birmingham’s exceptional financial position (section 114 notice, government commissioners and an enforced savings plan), there was no less intrusive viable alternative that would avoid unacceptable compromise to the Council’s required programme. The public sector equality duty had been considered in the Council’s review processes. The claim for judicial review was dismissed.

Background and parties: The claimant is a young man with profound and lifelong disability who lives with his family and receives local authority support. He has no capacity to work and is dependent on state benefits. Birmingham City Council provides significant care and support but applies a charging policy for community adult social care contributions. The claimant sought judicial review of the Council’s decision to maintain its 2023 charging policy without change, alleging disability discrimination and breach of the public sector equality duty.

Relief sought (i): A declaration and relief by way of judicial review that the Council’s 2023 charging policy unlawfully discriminates against those severely disabled and permanently unable to work, contrary to Article 14 ECHR (read with Article 1 of Protocol 1), contrary to the Equality Act 2010 (direct and indirect discrimination) and that the Council breached the public sector equality duty in s.149.

Issues framed by the court (ii): The primary issues were (a) whether the claimant’s status (severely disabled and unable to work) qualified as “other status” under Article 14; (b) whether the charging policy produced difference in treatment vis‑à‑vis an analogous comparator or constituted a failure to treat differently under Thlimmenos; (c) if there was differential treatment, whether it had an objective and reasonable justification (legitimate aim and proportionality); and (d) whether the Council complied with the public sector equality duty when formulating and maintaining the policy.

Court’s reasoning and conclusions (iii): The court accepted that the claimant’s status fell within Article 14. The judge analysed the interaction between the Care Act 2014, the Care and Support (Charging and Assessment of Resources) Regulations 2014 (including the earnings disregard and the minimum income guarantee) and the Council’s discretionary powers. The court emphasised the difficulty of demonstrating discriminatory effect in a multifactorial statutory scheme where the earnings disregard (Regulation 14) intentionally privileges earned income and where the MIG and disability‑related expenditure mechanisms operate to protect income.

The court treated the claimant’s complaint as, at its core, a Thlimmenos challenge (failure to treat differently those who cannot work). The Council’s legitimate aim — to address an existential budgetary crisis and implement an enforced recovery plan that required maximising lawful income streams — was accepted as sufficiently important. On proportionality the judge found that, given Birmingham’s exceptional financial position (section 114 notice, imminent £293m savings target and central government oversight), there were no less intrusive measures available that would not unacceptably compromise the recovery programme. The court also found that the Council had engaged with equality issues in its post‑Norfolk review and that the public sector equality duty had been addressed with appropriate focus. Taking the Bank Mellat proportionality matrix and the limited intensity of judicial review in social and economic policy contexts into account, the claim was dismissed.

Comments on context: The court noted Norfolk v Norfolk County Council as an influential decision which raised similar legal questions but declined to treat its reasoning as determinative in Birmingham’s materially different factual and financial circumstances. The judgment emphasised that local authorities have discretion to mitigate effects but must exercise it sensibly and in light of local circumstances; judicial intervention is limited where choices are rational and necessitated by extreme fiscal emergency.

The claim is dismissed. Although the claimant’s status as severely disabled and unable to work falls within Article 14 and the complaint engaged questions of differential treatment, the court found the Council’s decision to maintain its charging policy was justified and proportionate in light of a legitimate and pressing aim — to implement an emergency programme to restore the Council’s finances — and there was no viable, less intrusive measure available which would avoid unacceptable compromise to that recovery. The court also concluded the Council had given focused consideration to equality issues in its review and was not in breach of the public sector equality duty on the evidence before the court.