Human Rights Act 1998 challenge to a local authority's charging policy succeeds
We take a look at the grounds of which local authorities must ensure their actions do no discriminate against
R (on the application of SH) v Norfolk County Council 
Local Government analysis: Norfolk County Council (the local authority) provided services to SH, charging on a means-tested basis. Following a change in the local authority’s charging policy, SH found her assessed contribution increased significantly which she challenged by way of judicial review. SH alleged that the amended policy was unfair and discriminated against her, as a severely disabled person, contrary to section 6 of the Human Rights Act 1998 and Article 14 of the European Convention on Human Rights (ECHR). The court found that her ‘severe disability’ was capable of being an ‘other status’ for the purposes of Article 14, concluding that the local authority’s amended charging policy had treated SH differently to others subject to the same policy, and could provide no justification for that difference in treatment, Consequently, he granted the relief sought. This case highlights what local authorities should consider if a decision risks impacting upon someone with a protected characteristic or ‘other status’.
What are the practical implications of this case?
Local authorities must ensure that their actions do not discriminate against anyone on grounds of their:
- sexual orientation
- political of other opinion
- national or social origin
- association with a national minority
- ‘other status’
In full knowledge that ‘other status’ will be given a generous meaning by the courts, this has included types of disability, R (RJM) v Secretary of State for Work and Pensions  and Regina (Clift) v Secretary of State for the Home Department  and following this case, can also include severity of disability. If a local authority’s action is likely to result in a person being treated differently from another person subject to the same action, on the ground of a protected characteristic or ‘other status’, then the local authority should not proceed until they have established whether their decision or action can be justified.
Lord Reed in Bank Mellat v Her Majesty’s Treasury provides a test for such justification which asks four questions, which can be summarised as follows:
- is the objective of the action sufficiently important to justify the limitation of the protected right?
- is the action connected to the objective?
- could a less intrusive action be taken without compromising the objective?
- when balancing the effects of the action on the person, against the objective, does the former outweigh the latter?
If the differential effects of the action cannot be removed, mitigated against or justified, then the local authority should not proceed.
What was the background?
SH was a 24-year-old woman with down syndrome who, because of her disabilities, had never been able to earn money. She had no income apart from her state benefits. The local authority provided SH with services in accordance with its duties under the Care Act 2014 (CA 2014) and sought to charge for those services on a means-tested basis. SH was required to pay those charges out of her benefits.
In deciding the case, Mr Justice Griffiths followed the formula from R (on the application of Stott) v Secretary of State for Justice  and Re McLaughlin’s Application for Judicial Review (Northern Ireland), helpfully combining the respective guidance from Lady Black and Lady Hale, contained therein.
Griffiths J found that the local authority’s charging policy did discriminate for the following reasons.
The local authority argued that SH’s proposed ‘other status’ of ‘severely disabled’ was not precise enough to warrant protection under Article 14 ECHR. Griffiths J agreed that the proposed status needed to be ascertainable for it to be protected, but felt that as her disability had been assessed for the purposes of her entitlement to Employment Support Allowance and PIP granting her the highest level of support available, it was as precise as the category of ‘a severely disabled child in need of a lengthy in-patient hospital treatment’ which had been recognised previously in Mathieson v Secretary of State for Work and Pensions .
SH’s needs as a severely disabled person were higher than the needs of a less severely disabled person, hence her needs-based benefits were awarded at higher rates. Under the local authority’s charging policy, all of this income fell to be included in her assessment. By contrast, a less severely disabled person might receive less benefits but may be able to work, and their earnings from employment or self-employment would be protected and not included in the assessment. The local authority argued that this was not differential treatment because the same policy applied. Griffiths J found that the local authority’s argument missed the point: the policy was equal but not equitable, and it had a disproportionate impact against severely disabled people. The local authority had not taken steps to mitigate this and therefore, on the facts, the court held that there was a difference of treatment between two persons in an analogous situation.
The local authority set out its aims, which were:
- to apportion the local authority’s resources in a fair manner
- to encourage independence
- to have a sustainable charging regime, and
- to follow the statutory regime
Using the four-question test set out in Bank Mellat as a guide, Griffiths J found that:
- the local authority’s objectives were not sufficiently important to justify discriminating against the most severely disabled in order to advance them
- the discriminatory impact was not rationally connected to the objective
- a less intrusive measure contained in the statutory guidance had not been considered
- balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objectives, the discriminatory effect was irrational, unnecessary, and wholly out of proportion
SH succeeded in her claim, and the relief sought was granted.
- Court: Administrative Court (Queen’s Bench Division), High Court of Justice
- Judge: Griffiths J
- Date of judgment: 18 December 2020
Written by Victoria Cassidy and first published on 25 January 2021 by Lexis®PSL.