City council successfully defends adult social care charging policy at Court of Appeal

Birmingham City Council’s financial turmoil meant it was entitled not to reduce its charges for adult social care and the local authority did not breach the public sector equality duty, the Court of Appeal has found, declining to overturn a ruling last year by Mrs Justice Collins Rice.

Applicant YVR brought the case through his litigation friend YUL.

YVR is severely disabled young man and will never be able to work, the court heard.

He is dependent on state benefits and his eligible social care needs are met by Birmingham, which charges him for the provision of those services.

Delivering the judgment, Lord Justice Males said: “The issue on this appeal is whether the council's charging policy was adopted in breach of the public sector equality duty (on the ground that the council failed to have due regard to the need to eliminate discrimination and to advance equality of opportunity for severely disabled persons such as the appellant).”

Males LJ said a policy review that led to only minor changes to charges had followed “the council's descent into unprecedented financial crisis”, with a notice under section 114 of the Local Government Finance Act 1988 having been issued in September 2023 saying it could not balance its budget and with a projected deficit of £87m.

The government sent in commissioners to oversee the council, who found revenue savings of £293m were needed over the following two financial years.

When YVR brought judicial review proceedings over the alleged failure to reduce aspects of the charges that gave rise to discrimination, Collins Rice J held that there was compliance with the duty because it concerned having regard to the equality issues and these were at the heart of the review process which had led to the decision.

YVR argued the duty can only be discharged by a council cabinet as the relevant decision maker, but it never considered the equality duty in this context.

Other grounds were that officers failed to gather evidence of the potentially negative impact of the charging policy on the most severely disabled or to assess that impact, and that Collins Rice J applied the wrong legal test when deciding under the Senior Courts Act 1981 that it was 'highly likely' that the outcome would have been the same absent any legal error,.

Males LJ said: "I have no doubt that the judgment proceeded on the basis that the PSED did apply to the January 2023 [charging] decision, and that it was correct to do so…”

He added: “It is irrelevant that the judge may have suggested otherwise when the time came for her to consider the question of permission to appeal. While it may be thought that a judge knows best what she intended to decide, what she actually decided must appear from the judgment, which must speak for itself.”

The submission that only the cabinet should have taken the decision on charging “appears to have sidled into these proceedings in a somewhat oblique way.”, Males lJ said.

"There was no hint in the appellant's pleadings, or in his skeleton argument for the hearing in the court below, of any point that the decision ought to have been taken by the council's cabinet and that the cabinet had never considered the PSED. The point arose for the first time in oral submissions [for YVR] in the court below.”

YVR argued the relevant decision maker was the cabinet because only it had the power to amend the charging policy.

The decision was in fact taken by Professor Graeme Betts and John Williams, respectively Birmingham’s strategic director for adult social care and director for community and operational services (adult social care).

Males LJ said the concept of a ‘relevant decisions maker’ did not appear in section 149 of the Equality Act, which “requires a 'public authority' to comply with the PSED when it exercises its functions, but says nothing about how it should comply or who the decision-maker has to be.

"Parliament can be taken to have understood that in the case of a local authority some decisions will be taken by a council's full cabinet, while others will be delegated to officers in accordance with the authority's constitutional documents.”

He continued: “There is nothing in section 149 to require that someone who does not in fact take the decision, and is not required to do so under the authority's constitution, must be treated as the 'relevant' decision maker for the purpose of the section.”

As an alternative to ground 1, YVR submitted that even if Professor Betts and Mr Williams were the decision-makers, they failed to gather evidence of the impact on severely disabled people of their decision not to change the existing policy.

But Males LJ said: “It was obvious, and well understood, that to retain the existing charging policy would mean that adults in receipt of social care might find that a considerable percentage of their benefits was taken in charges, and that this impact would operate more severely on those unable to work because the earnings of disabled people who could work were protected.

"An evidence gathering exercise of the nature contended for by [YVR] was unnecessary.”

Turning to the Senior Courts Act, Males LJ said: “In my judgment the judge was entitled to reach this conclusion. In view of the council's dire financial situation, it is not only highly likely but almost inevitable that the same decision would have been made.”

Lady Justice Whipple and Lady Justice King both agreed.

Mark Smulian