The King on the application of YVR (a protected party, by his litigation friend YUL) v Birmingham City Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Collins Rice DBE,Mrs Justice Collins Rice |
| Judgment Date | 26 March 2024 |
| Neutral Citation | [2024] EWHC 701 (Admin) |
| Year | 2024 |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-BHM-000095 |
[2024] EWHC 701 (Admin)
THE HONOURABLE Mrs Justice Collins Rice
Case No: AC-2023-BHM-000095
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
Priory Courts, 33 Bull Street, Birmingham, B4 6DS
Mr Dan Squires KC & Mr Aidan Wills (instructed by Central England Law Centre) for the Claimant
Ms Joanne Clement KC & Mr John Bethell (instructed by Birmingham City Council Legal Department) for the Defendant
Hearing dates: 28 th & 29 th February 2024
Approved Judgment
This judgment was handed down remotely at 10.30am on 26 March 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HON. Mrs Justice Collins Rice DBE
Introduction
This claim is brought, on his behalf, by the mother of a severely disabled, active young man with, as I have read, a big smile. They have been anonymised by court order in these proceedings because he is so vulnerable. I shall refer to him as the Claimant.
The Claimant is in his mid-twenties. He lives at home with his parents and siblings. That is what they all consider best. He is profoundly autistic, he has epilepsy, and he has severe learning disabilities and other mental ill-health diagnoses. He is non-verbal, and can exhibit challenging behaviours. His mother's written evidence, which I have read carefully, is eloquent testimony to her long labour of love in providing the happiest life and best opportunities she can for her son. Her own personal care for him is a crucial part of the support and enabling on which he relies.
Their local authority, Birmingham City Council (‘the Council’) provides a lot of care and support for him too. It is required to by law. The family is glad of this help and the huge contribution it makes to the Claimant's daily life.
This case is all about how the Council charges the Claimant for what it provides. The Claimant does not so much complain of the calculation of his own bill, at any rate in these proceedings; he challenges the whole policy under which the Council charges for the provision of adult social care in the community to individuals like himself. He says it treats unfairly and discriminates against people who, like him, are so disabled they cannot, and will never be able to, do any paid work.
Birmingham City Council is said to be one of the largest local authorities in Europe. As is well known, it is in the most severe of financial predicaments. Its budget management is currently subject to emergency central government intervention and oversight. As at the time of hearing the Claimant's challenge, at the end of the financial year 2023/24, the Council had effectively declared itself bankrupt, was looking to make a drastic £300m of cuts, and had been granted exceptional government permission to increase council tax by a total of 21% over the next two years.
The Claimant's situation
(a) Assessing and meeting adult social care needs
Local authorities have a duty, under section 18 of the Care Act 2014, to meet an adult's needs for care and support – except where they are already being met by a carer – if those needs meet certain ‘eligibility criteria’.
These ‘eligibility criteria’ are explained in section 13 of the Act, and in regulations made under it. They relate to a person's assessed physical or mental impairment, and their inability, by reason of that impairment, to achieve certain ‘outcomes’.
The assessment of an individual's needs is kept under review. In the Claimant's most recent assessment (September 2023), he was assessed as being unable, by reason of his disabilities, to achieve the following outcomes: (a) managing his own daily nutrition, (b) maintaining personal hygiene, (c) managing toileting, (d) dressing himself, (e) ‘making use of his home safely’ – he cannot be left alone and unattended anywhere at home, (f) maintaining a habitable home environment. These are his ‘eligible needs’.
To the extent that these needs are not met by his mother and family, they must be, and are, met by the Council. The Claimant attends a Council day centre all day on weekdays, where he receives one-to-one support. He is provided with one-to-one support from a Council carer at home for a set number of additional hours per week (increased at his last review from 10 to 30, as his mother was herself starting to struggle to keep up with his needs).
As well as meeting his eligible needs, the day centre and the Claimant's personal carer enable the Claimant to keep calm, to maintain a routine, and to stay fully occupied, all of which is important for his wellbeing and helps manage his challenging behaviours. They also enable him to enjoy physical and social activities which make a big contribution to his quality of life. They enable him to communicate, to go to the park, to enjoy walking and swimming, to negotiate roads and shops, and to eat out on a weekend day at a favourite café where he and the staff know each other.
(b) The benefits system
The Claimant is unable to earn any income of his own. He has no other independent means. He is reliant on the state benefits system. That is what it is there for.
His ordinary, basic living needs are provided for by the Universal Credit standard allowance, which is means-tested. This is intended to pay for his food and clothes and his everyday personal expenses. He is also entitled to the Universal Credit ‘limited capability for work-related activity’ allowance (‘LCWRA’). This is paid to individuals like the Claimant who, by reason of their disability, are likely to have general higher living costs than others (for example, in his case needing a frequent supply of fresh clothes), but who at the same time cannot supplement their benefits income by earning.
The Claimant is also entitled to the Personal Independence Payment (‘PIP’). This is a non-means-tested benefit. There are two parts to it. The daily living part is intended to provide for the cost of getting help with everyday activities if an individual needs that help. Activities under this heading include preparing food, personal hygiene, dressing, reading, communicating, and socialising. The mobility part is intended to provide for the cost of getting help with physically moving around, leaving the home, following a route and travelling.
The level of these benefits is set nationally and assessed by the relevant Government agency. As can be seen, the LCWRA and the PIP are directed to the cost of meeting some of the Claimant's particular needs arising from his disability, including some of those the Council is required by law to meet. The mechanism which connects up the funding stream provided for disabled individuals by the benefits system, with the provision of care to them by the local authority, is section 14 of the Care Act 2014.
(c) The power to charge for the provision of adult social care in the community
Section 14 gives local authorities the power to charge an adult for meeting their ‘eligible needs’ – and most, if not all, do so. (Some services – such as the provision of disability aids and adaptations – must be provided free of charge: section 3 of the Act.) If authorities are going to charge, they must make an assessment of the individual's financial resources (section 17). Section 78 of the Act requires local authorities to ‘ act under the general guidance of the Secretary of State’ in the exercise of charging functions.
By section 14(7) of the Act, the authority may not make a charge if the income of the individual would, after deduction of the amount of the charge, fall below an amount to be specified in regulations. In other words, authorities cannot charge at all unless an individual's income is over a certain amount, and that amount is then protected from being taken in charges. This is the ‘minimum income guaranteed amount’ (‘MIG’). The way the MIG is worked out is set out in Regulation 7 of the Care and Support (Charging and Assessment of Resources) Regulations 2014. It is a relatively complex mechanism. It varies from individual to individual, and depends on factors relating to age and family circumstances. It also factors in disability at two levels, depending on severity of disability: at each level, a disabled individual is allocated an enhanced MIG.
The Regulations also make important provision about how an individual's income is to be assessed in the first place. In particular, they specify certain income that cannot be taken into account for these purposes. For example:
i) Earnings derived from employment cannot be taken into account (Regulation 14). This reflects a general legislative policy to protect earned income and to maximise the incentive to work where possible, not least because of the contribution it can make to an individual's wellbeing.
ii) By paragraph 4(1) of Schedule 1 to the Regulations: ‘ where a local authority takes into account in the calculation of income any disability benefits the adult receives, any disability-related expenditure incurred by the adult’ is deducted from the income calculation. Disability benefits are defined to include the PIP. Regulation 4 is known as the ‘disability-related expenditure’, or DRE, disregard.
iii) The mobility component of the PIP cannot be taken into account (paragraph 8 of Schedule 1).
What all this means for the Claimant is that his income may, as a matter of statute law, be assessed for charging purposes by including all of his Universal Credit standard allowance and LCWRA, and the daily living element of the PIP (minus the DRE disregard). His personal MIG is then calculated, taking into...
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