Summary of Counsel’s advice about the Norfolk Case

By publishing key points from the Advice received from Zoe Leventhal and Emma Foubister, counsel who acted for SH in the Norfolk case, CASCAIDr hopes to help many others who may be in a similar situation and experiencing discrimination that may be unlawful, regarding their care charges.

You can read the advice in full, here: Click here

Other local councils must consider the ruling and examine whether their policies could be discriminatory to ensure they are fulfilling their Public Sector Equality Duty and that they are not breaching the Human Rights Act. While other councils’ policies are not automatically unlawful merely as a result of the decision in SH’s case, if the policies are considered to be discriminatory, they must take steps to correct this.

The judgment in the Norfolk case found that there was an unjustified difference in treatment between, on the one hand, the severely disabled (with needs which result in higher assessable benefits and no realistic access to earnings from employment or self-employment, which are disregarded) and, on the other hand, everyone else receiving council services covered by the Charging Policy. Their treatment was different because the Charging Policy meant that a higher proportion of SH’s income (and of other severely disabled people in the same position) was assessed as available to be charged than theirs, and the result was that she was charged disproportionately more than they are.

Belinda Schwehr, CASCAIDr’s CEO, welcomed the Advice. She said this: 

“I believe that this authoritative Advice will be useful for people in many different situations, if paying council charges for care, and for those who manage other people’s money in their best interests (through appointeeship, deputyship or power of attorney). 

The Advice was commissioned so that it can be referred to when individuals are engaging with councils as to their own charges under local policies – in most cases, policies that are very similar to the one which was found to be unlawful in Norfolk. 

It will enable the wider public to take action from a well-informed perspective, whether as individuals or groups, and to ensure that local authorities remember that they are accountable to a legal framework, even when operating under discretion, and in difficult circumstances. 

It will undoubtedly help bring about changes in many councils’ policies, whatever they think of the Norfolk case itself. It may dissuade some councils from enforcing a number of clients’ charging debts. It may even lead to some refunds – refunds to people whose situations mean that they need to keep every single penny of income that they possibly can.”

We would like to thank Leigh Day, solicitors who supported our work, and everyone who donated to our CrowdJustice page to fund the legal advice. This page remains open for further work on this matter, and of this kind, in future.

See here for making a donation if you possibly can: https://www.crowdjustice.com/case/disabled-and-done-over/

Special thanks are due, too, to Kaylee Lindsey, a CASCAIDr assistant, whose many years of helping people with charging sagas inspired this project.

In summary, Counsel has now advised as follows:

“…policies which:

(a) reduce the MIG to the statutory minimum;

(b) choose not to disregard certain disability benefits;

(c) have poorly functioning DRE schemes; and

(d) do not consider alternative approaches,

are likely to be discriminating against severely disabled people.”

There may also be other categories of claimants who are in an even worse position than those in SH’s cohort.

All Councils have an ongoing duty to keep their charging policies under review because of the PSED, the Human Rights Act obligation not to act contrary to human rights, as well as their other legal obligations (e.g. under the Care Act) and general public law principles.

In that regard, the Norfolk case and its outcome is a relevant consideration, of which all councils must take note. It would not be appropriate simply to assert that it is believed to be “wrongly decided”. It identifies an approach which is discriminatory, and which would require to be justified, if a similar approach was not changed. It doesn’t make other policies automatically unlawful, however similar they are; but “if a council has a similar policy and has similarly failed to engage with the Guidance and/or consider the potentially discriminatory impact of the policy, then it is highly likely that it is also acting unlawfully in the same way as Norfolk was.”

Each council needs to make a decision about whether its policy needs to be changed, and if so, how to change it, and then come to a view about the consequences flowing from those changes. There’s no necessarily correct way to be sure of avoiding the discriminatory impact flowing from a policy with similar impact.

If councils’ policies are accepted to be discriminatory, or found by a Court to be so, then refunds based on recalculated charges should follow, because the charges will have been rendered under a policy that should then be regarded as void.

A local authority’s complete failure to respond to or engage with communications on this issue (whether from individuals, corporate appointees or interested groups) could be maladministrative, but it is not expected that councils will behave in that way. Any such referral to the Ombudsman “could be supported by evidence that there are vulnerable clients, such as those who are mentally impaired or need protection from abuse, who would be unable to investigate the matter themselves”. Counsel would expect that councils adopting good practice would proactively seek to address these issues and repay any charges found to have been unlawfully levied under a discriminatory policy, in line with the various legal obligations which require them to do so, and as Norfolk has done.

WHAT ALL THIS MEANS, in CASCAIDr’s view…

Not automatically discriminating – other councils are not bound by the case, in a direct sense, even if their policies are the same as Norfolk’s was. They are entitled to take advice about it and act in accordance with that advice, and they can then be challenged. The credibility or authority of such a view remains to be evaluated when it is disclosed in the course of correspondence about the policy. CASCAIDr called having a similar policy ‘presumptively unlawful’, when first writing to councils earlier on this year.

Putting councils on notice – we wrote to all councils on 22 January 2021 here: https://www.local.gov.uk/letter-centre-adults-social-care-advice-information-and-dispute-resolution and have heard back from about 100, so far, but mainly only to tell us they are ‘awaiting’ advice. From some, we have heard nothing at all. We have also researched most of the policies of councils in England, so we know which ones have policies that must be seen as in the danger zone.

Separate Advice taken for the council sector – we believe that the council sector has now received its own leading counsel’s separate Advice, and that councils are considering it regionally. THIS Advice, though, obtained by CASCAIDr, will no doubt also be considered – every council is in a different position and entitled to make its own mind up.

FOIs as the next step, after a reasonable period – we are happy to wait a while longer before following the suggestion made in this Advice: “Where this has not been effective, a next step may be to use the Freedom of Information Act to elicit further information about the steps taken since the decision in SH and/or whether an updated EIA has been undertaken since that decision (see further below).” When we move to that step, starting with the councils who have not responded to us at all, the FOIs will be made public.

Complaints and the LGSCO – if they think that the case was wrongly decided, councils might well make it clear that they will not be amending policy by virtue merely of individuals’ complaints, because complaints are not apt for matters of legality. That would not shut off the LGSCO (Ombudsman) route, because, in fact, it is not a prior complaint, that is the statutory pre-condition to the Ombudsman accepting jurisdiction, but the question whether the council has been afforded “a reasonable opportunity to investigate the matter, and respond“. Then again, the Ombudsman’s system is not able to make decisions as to what the law is, only ‘fault’ and ‘injustice’. However, the Ombudsman’s team IS experienced in upholding complaints as to when non-compliance with well-known decided case law itself amounts TO fault, and awarding compensation for that kind of injustice.

Implications for those in current debt from charges – individuals who do not pay their charges, or do not pay them in full, may ultimately force councils to test the validity of the charges in another way, if the council sues for recovery of the charges – because the debtor can raise the unlawfulness in the local civil court, as a defence. The County Court Judge is bound to follow the Norfolk case as binding legal precedent on the issues at stake. Any client without sufficient capacity to instruct a solicitor would need a willing litigation friend, to represent their interests, before they could even BE sued, and the Official Solicitor is unlikely to be willing to provide that service without the council undertaking to pay the person’s costs. So if your council’s policy appears to be ‘doing a Norfolk’, bear that in mind – but also that you won’t get legal aid if it comes to the crunch, in that sort of action.

Public law claims for refunds – where more than just change for the future is wanted, locally, individuals’ claims for reimbursement of sums representing unlawful charges, would need to be made in the Administrative Court, if councils refuse to accept that they are bound by the Norfolk decision and must make such refunds.

Limitation – the monetary claim can wait 6 years from the date of any instalment of the charge, such that if the charging policy may always have been unlawful for the whole of the last 6 years since the Care Act came into force in April 2015, and has not ever been revised, claims started sooner, rather than later, now, will serve to maximise the amount liable to be paid. That means that although there is time in most areas (where policies have only been in force for 2-3 years) to engage in correspondence on behalf of large groups of people, leaving it a long time before deciding when to draw a line under just corresponding, does not make sense.

Night time care needs’ disregards, and DREs as a concept – any council taking the view that the DRE element of its policy was or is the means by which it can mitigate against the discriminatory impact inherent in NOT applying a higher than minimum MIG, locally, faces a hard task in defending that stance. The judge did not think that a DRE disregard, as a concept in its own right, nor Norfolk’s own policy on DRE, nor the DRE disregard it awarded specifically to SH, were enough to justify the impact of the measure taken, although the judge was sympathetic to the financial difficulties in which councils operate. Not even a standard policy for disregarding a portion of PIP, as if for private funding of night time needs, where no services were being funded by Norfolk, was sufficient.

DRE policy – counsel’s Advice identifies some other challenges that could be made to DRE policy, regarding supposed lifestyle choices, activity entry fees, and arbitrary limits on transport. Councils are not entitled to refuse to consider DRE disregard requests, nor to re-consider those, however, simply because they believe that their charging policy is not discriminatory or that the Norfolk case is wrongly decided. DRE reviews are likely to be the way most councils allow for discretion in individual cases in order to avoid legal action.

SDP recipients – there is reason to expect that the charges being levied on people who are in receipt of Severe Disability Premium within their income-related benefits may be being even more severely discriminated against than those in the position of SH in the Norfolk case. That premium is paid to cover the assumed extra costs of just getting by, when severely disabled and living alone, or without informal help, yet councils do not routinely allow any part of that extra income to be kept, even though it is clearly disability related income.

Future challenges to charging policies – we think that these may be made in five ways, by individuals, or by more than one individual or groups (either unincorporated associations or groups with a legal personality):

a) Through the Monitoring Officer route, as CASCAIDr used in January 2021, but describing the alleged likely contravention of the Equality Act, Care Act and Human Rights Act in terms relating specifically to the individual or group and to the contents of the local charging policy. That route is not the same as the ordinary complaint system, and is free to anyone who can set out the allegation in clear enough terms. The Monitoring Officer is usually the council’s Head of Law, and is under a statutory duty to consider the referral and come to a view on whether there is a likely contravention of an Act or rule of law. See Counsel’s advice for some further information about that duty.

b) Through correspondence to the Financial Assessment department setting out the reason one thinks that the charging policy version under which one has been charged was unlawful in light of the Norfolk case, and suggesting that seeking legal advice would be prudent before replying, because the correspondent isn’t ‘appealing’ as such, or necessarily complaining, but raising the point that the financial assessment function hasn’t been carried out lawfully. One would always ask that discretion under regulation 15 be exercised, with written reasons why not, if not.

Some potential areas to focus on are

  • That might be because of the local approach to counting IN income in the first place
  • Or about how the Minimum Income Guarantee regulations and Guidance were interpreted by that council
  • Or because of a DRE policy that is able to be presented as discriminatory, fettered, unlawful or irrational
  • Or because of the way in which the DRE policy has been applied, in practice – oppressively or unfairly in all the circumstances.

c) Through a formal letter before action to the legal department after all such prior correspondence has achieved no or no adequate reconsideration of the policy, or of one’s charges (or of one’s DRE if the DRE was the major bone of contention) – explaining one’s intention to bring Judicial Review proceedings in the Administrative Court. The council must reply, setting out its reasons for rejecting the alleged illegality – usually within 14 days. The letter before action must comply with the Pre Action Protocol for Judicial Review Proceedings to protect the proposed claimant against a costs order for putting the council to legal advisory effort. There is a fee to start such an application, although one can represent oneself and the application is able to be made without physically going to court or speaking. One can get legal aid to fund legal advice and representation but capacity in that sector is VERY limited at this point.

d) Through letters to the press or to councillors, or scrutiny committees – the political route, effectively.

e) Through waiting to be sued for an alleged debt in the local county court, and then raising the point as a defence.

CASCAIDr has sourced some interest from legal aid law firms who will be willing and capacitated to work with us (after screening by us, as to the basics of one’s claim (for a £35 flat rate fee that you can pay online) by taking forward certain types of referrals from us. The details are here: https://www.cascaidr.org.uk/legality-check/

No-one is obliged to work through us, for this route to legal aid advice, but the number of law firms able to help in these cases is small, and we think that having your situation pre-screened and joined up with what the relevant council has or has not said to us in correspondence, will help when it comes to getting over the threshold!

If one does not qualify for legal aid, on the means test, one will need to go to a private sector law firm and pay a fee for the drafting of the letter or the issue of proceedings, but perhaps be offered a beneficial rate if you are a group of people, instead of just one.

CASCAIDr does not distinguish between clients on the basis of means. We charge for all our charging work at our low-cost charitable rate of £125 an hour, after the £35 basic check, but Covid has ensured that we, too, have limited capacity to help individuals. So we welcome approaches from groups who might well want some hand-holding, but who are happy to be self-starting!

That crisis in legal aid, and awareness of public law’s importance in community care, is what has led to this initiative in crowdfunding, our first, for this Advice from counsel.

We hope that it will assist many people to take steps themselves, to assert their right to pay no more than the law allows for their social care services – but we will be here as a fall-back, if not.

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