The mother of a 27-year-old with Down’s syndrome has lost her Supreme Court fight to get charges for the local authority’s community care services removed.

Terri McCue argued that Glasgow City Council had ‘failed to make adequate deductions’ from her son Andrew’s income, his welfare benefits entitlements, in relation to ‘certain disability expenditure.’ These deductions would then have resulted in reduced charges for his care leaving him with more of his income.

The council was accused of discrimination against Andrew on the grounds of his disability which it denied.

The local authority assessed the charge due from Andrew was £28.07 per week during 2015, which McCue asked to be reconsidered.

McCue set out her estimate of the additional costs Andrew incurred as a result of his disability. This included gas and electricity at £45 per four-week period for increased heating and lighting as Andrew ‘needs the house heated to a higher temperature than most people and spends more time at home due to his disability’; £67.98 per four-week period for laundering of clothes and bedding as an additional cost due to creams being applied to manage a dermatological condition; £10 per four-week period for clothing alternations as off-the-peg did not fit him and £15 per four-week period for the additional cost of replacement footwear due to wear and tear as a result of Andrew’s hypermobility and ‘gait associated with his disability.’

£25 for a support worker to attend concerts and £40 per four-week period for a debt repayment for services incurred due to Andrew’s disability were also included in McCue’s additional cost estimates.

The council accepted it would be appropriate to make a deduction of £6.25 per week for clothing alternations and additional footwear costs. It decided that other expenditures should be paid for by Andrew. The assessed contribution was recalculated at £21.82 per week, rising to £22.21 in the next assessment period.

McCue refused to pay the charge and believed her son ‘should not have been subject to any charge at all.’

After judicial review proceedings began, the council stated that due to new evidence, an article by a medical expert, filed by McCue in the JR claim ‘[McCue] had now established to its satisfaction that the use of the cream was related to Mr McCue’s disability in the relevant sense.’ The cost of additional laundry at £2.50 per week was deducted from his available means as relevant disability related expenditure.

Eventually McCue was assessed to pay £21.10.

In McCue v Glasgow City Council, the Supreme Court judgment found that the council’s policy to consider charging any person who uses its community care services, whether they are disabled or not, and where it assesses that it is reasonable and practicable for an individual to pay ‘cannot in itself found a claim of discrimination under section 20 [of the Equality Act]'.

Lord Sales said: ‘The appellant’s submission is that the council should have been more generous (to Mr McCue) in deciding the extent of the deductions from his available means by reason of his disability related expenditure. The council has followed the same approach in applying section 87 [of the Social Work Scotland Act] as it has adopted in relation to all persons in receipt of community care services provided by it, with appropriate modification in Mr McCue’s favour to take account of additional practically unavoidable financial pressures to which he is subject by reason of his disability.’

However, the council’s argument that a favourable feature for disabled persons in the council’s approach 'rules out any possibility of a claim of unlawful discrimination on grounds of disability under section 15' was not accepted. Lord Sales added: 'This is not sustainable as a general proposition.'

He said: ‘The question [in relation to section 20] is whether that practice puts Mr McCue, as a disabled person, at a disadvantage…in comparison with persons who are not disabled. In my view, it is clear that it does not. This is for the simple reason that the practice only applies to disabled people. As a distinct practice, as Mr Dailly [for McCue] identified it, it does not allow for any comparison to be made with the treatment of persons who are not disabled, so there is no scope for the application of section 20(3). Alternatively, one could say that this practice, as so identified, confers an advantage on disabled persons in comparison with non-disabled persons, not a disadvantage.’

The appeal was dismissed.

 

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