McCue v Glasgow City Council
| Jurisdiction | Scotland |
| Judge | Lord Sales,Lord Reed,Lord Lloyd-Jones,Lord Burrows,Lord Stephens |
| Judgment Date | 11 January 2023 |
| Neutral Citation | [2023] UKSC 1 |
| Court | Supreme Court (Scotland) |
| Year | 2023 |
[2023] UKSC 1
Lord Reed, President
Lord Lloyd-Jones
Lord Sales
Lord Burrows
Lord Stephens
Appellant
Mike Dailly, Solicitor Advocate
(Instructed by Drummond Miller LLP (Edinburgh))
Respondent
Ruth Crawford KC
Dan Byrne, Advocate
(Instructed by Morton Fraser LLP (Edinburgh))
Heard on 18 October 2022
Lord Sales ( with whom Lord Reed, Lord Lloyd-Jones, Lord Burrows and Lord Stephens agree):
This appeal is concerned with the effect of the Equality Act 2010 (“the Equality Act”) in relation to the provision of community care services to disabled persons pursuant to the Social Work (Scotland) Act 1968 (“the 1968 Act”) and the charges made for such provision.
The appellant is Mrs Terri McCue, acting as guardian for her son, Andrew (“Mr McCue”). Mr McCue is now 27 years old. He has Down's Syndrome and lives with his parents. He is disabled within the meaning of section 6 of the Equality Act. His disability results in him being provided with community care services by the respondent, Glasgow City Council (“the Council”). An issue has arisen regarding the amount, if any, which the Council is entitled to charge Mr McCue for those services.
The appellant contends that, in calculating the charge for the services, the Council has failed to make adequate deductions from Mr McCue's income which is liable to be brought into the assessment of the charge to be levied. The appellant says that the Council should have made greater deductions from Mr McCue's assessable income in respect of certain disability related expenditure. This would have had the effect that the charges levied by the Council for the services provided to Mr McCue would have been reduced, leaving him with more of his income to spend as he chooses. The appellant submits that in failing to make greater deductions for disability related expenditure the Council discriminated unlawfully against Mr McCue on grounds of his disability, within the meaning of section 15 of the Equality Act. She also submits that in failing to make such greater deductions the Council acted in breach of its duty under section 20 of the Equality Act, which required it to make reasonable adjustments to take account of Mr McCue's disability.
Section 12 of the 1968 Act, headed “General social welfare duties of local authorities”, as amended, provides so far as relevant as follows:
“(1) It shall be the duty of every local authority to promote social welfare by making available advice, guidance and assistance on such a scale as may be appropriate for their area, and in that behalf to make arrangements and to provide or secure the provision of such facilities (including the provision or arranging for the provision of residential and other establishments) as they may consider suitable and adequate, and such assistance may, subject to subsections (3) to (5) of this section, be given in kind or in cash to, or in respect of, any relevant person.
(2) A person is a relevant person for the purposes of this section if, not being less than eighteen years of age, he is in need requiring assistance in kind or, in exceptional circumstances constituting an emergency, in cash, where the giving of assistance in either form would avoid the local authority being caused greater expense in the giving of assistance in another form, or where probable aggravation of the person's need would cause greater expense to the local authority on a later occasion.
…
(4) Assistance given in kind or in cash to, or in respect of, persons under this section may be given unconditionally or subject to such conditions as to the repayment of the assistance, or of its value, whether in whole or in part, as the local authority may consider reasonable having regard to the means of the person receiving the assistance and to the eligibility of the person for assistance from any other statutory body.
…”
Section 12A (as amended) imposes a duty on local authorities to assess needs. So far as relevant, subsection (1) provides:
“(1) Subject to the provisions of this section, where it appears to a local authority that any person for whom they are under a duty or have a power to provide, or to secure the provision of, community care services may be in need of any such services, the authority—
(a) shall make an assessment of the needs of that person for those services; and
(b) shall then decide, having regard to the results of that assessment, and taking account—
(i) if an adult carer provides, or intends to provide, care for that person, of the care provided by that carer,
… [and]
(ii) in so far as it is reasonable and practicable to do so, of the views of the person whose needs are being assessed (provided that there is a wish, or as the case may be a capacity, to express a view),
whether the needs of the person being assessed call for the provision of any such services.”
Section 5 of the Social Care (Self-directed Support) (Scotland) Act 2013 gives the person provided with community care services under section 12(1A)(b) of the 1968 Act certain rights to choose the form of support provided, but this does not affect the issues which arise on this appeal.
Section 87 (as amended) gives local authorities power to charge for services which they may provide under the 1968 Act. It provides in relevant part as follows:
“(1) … a local authority providing a service under this Act … may recover such charge (if any) for it as they consider reasonable.
(1A) If a person—
(a) avails himself of a service provided under this Act …; and
(b) satisfies the authority providing the service that his means are insufficient for it to be reasonably practicable for him to pay for the service the amount which he would otherwise be obliged to pay for it,
the authority shall not require him to pay more for it than it appears to them that it is practicable for him to pay.
…
(5) The Secretary of State may, with the consent of the Treasury, make regulations for modifying or adjusting the rates at which payments under this section are made, where such a course appears to him to be justified, and any such regulations may provide for the waiving of any such payment in whole or in part in such circumstances as may be specified in the regulations.”
Regulations have been made to specify certain sums which shall not be brought into account when assessing the extent of a person's income and assets which may be available to pay a charge for services and accommodation under section 87. For present purposes, it is sufficient to note that the regulations specify that a proportion of the care element of the Disability Living Allowance to which Mr McCue is entitled and the whole of the mobility element of that allowance must be disregarded when assessing his available income.
Section 4 of the Equality Act sets out protected characteristics for the purposes of that Act. These include “disability”. Section 6(1) provides that a person has a disability if (a) he has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. A reference to a disabled person is a reference to a person who has a disability: section 6(2).
Section 29, headed “Provision of services, etc”, provides:
“(1) A person (a ‘service-provider’) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.
(2) A service-provider (A) must not, in providing the service, discriminate against a person (B)— (a) as to the terms on which A provides the service to B; (b) by terminating the provision of the service to B; (c) by subjecting B to any other detriment.
…
(7) A duty to make reasonable adjustments applies to— (a) a service-provider …
…”
Section 15 provides:
“(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”
Section 20, headed “Duty to make adjustments”, so far as relevant, provides:
“(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.
(2) The duty comprises the following three requirements.
(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
…
(8) A reference in section 21 or 22 or an applicable Schedule to the first, second or third requirement is to be construed in accordance with this section.”
Subsection (13) provides that the applicable Schedule for the relevant part of the Equality Act, relating to services and public functions, is Schedule 2.
Section 21, headed “Failure to comply with duty”, provides:
“(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.
(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.
…”
Schedule 2 is brought into effect by section 31(9). Paragraph 1 of Schedule 2 provides that the schedule applies when a duty to make...
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