Supreme Court clears council of disabled discrimination

Glasgow City Council did not discriminate unlawfully against a disabled man with Down’s syndrome in calculating his available means in relation to expenditure relating to his disability, for the purpose of charging for community care services provided to him under the Social Work (Scotland) Act 1968, the UK Supreme Court ruled today.

Five Justices unanimously dismissed an appeal by Terri McCue, as guardian for her son Andrew, against a decision of the Court of Session dismissing her application for judicial review founded on alleged unlawful discrimination against Mr McCue on grounds of his disability, within s 15 of the Equality Act, and breach of its duty under s 20 of the Act, which requires the council to make reasonable adjustments to take account of Mr McCue’s disability.

Lord Sales, with whom Lord Reed, Lord Lloyd-Jones, Lord Burrows and Lord Stephens agreed, said that where a local authority provided services under the 1968 Act, by s 87(1) it had a discretion whether to charge the recipient and at what level. By s 87(1A), if the individual satisfied the authority that his means were "insufficient for it to be reasonably practicable for him to pay" the amount which would otherwise be due, the authority may not charge more "than it appears to them that it is practicable for him to pay". The onus was on the individual to satisfy the local authority of such insufficiency.

The relevant question under s 87 was whether the council was satisfied that Mr McCue, by his expenditure on various items in dispute which he claimed were essential or necessary expenditures related to disability, had shown that his means were insufficient for it to be reasonably practicable for him to pay for the community care services provided to him by the council, through a charge calculated without deduction of those items.

In making its assessment, the council had properly applied s 87(1) and (1A) and it was not contended that it had acted irrationally or in any way unlawfully, according to the usual general obligations arising under public law.

The principal question in relation to s 15 of the Equality Act was whether the council had treated Mr McCue "unfavourably" because of something arising in consequence of his disability, within the meaning of s 15(1)(a).

A comparison was required between two states of affairs: what has happened to the complainant in fact and what would have happened to him in a counterfactual world without the treatment alleged to have been unfavourable. It was not necessary to identify a non-disabled comparator to find that there had been unfavourable treatment. 

The relevant treatment in the present case was the council’s application of s 87 of the 1968 Act. The council charged both disabled and non-disabled persons according to the same basic scheme. It extended this general approach in a way which was more generous to disabled persons to take account of disability related expenditure. The council’s approach could not therefore be said to be unfavourable to disabled persons: in fact, in allowing for a greater range of possible deductions it was favourable to them. The true nature of the complaint was that the treatment of Mr McCue was not generous enough, which was not a proper ground of complaint under s 15.

In relation to s 20, in order to make good a claim, the appellant needed to show that a provision, criterion or practice of the council put Mr McCue at a substantial disadvantage in relation to a relevant matter in comparison with persons who were not disabled, in order to be able to say that it must take reasonable steps to avoid the disadvantage.

The court was willing to infer that the council had adopted a practice according to which expenditures were rejected if they did not relate to disability, or if a person received a benefit to meet the cost in question, or if the expenditure represented discretionary spending and was not necessary to meet the disabled person’s needs. The practice did not put a disabled person at a disadvantage in comparison with non-disabled people for the simple reason that the practice only applied to disabled people. It did not allow for any comparison with non-disabled persons, so there was no scope for the application of s 20(3). Alternatively, one could also say that the practice of allowing the deduction of some, but not all, disability related expenditure conferred an advantage on disabled people.

For these reasons, which differed from those given by the Court of Session, the appeal was dismissed.