Introduction

The case of BB for Judicial Review [2024] CSOH 44 presents a pivotal examination of the interplay between social care charging policies and equality legislation in Scotland. The petitioner, BB, a 40-year-old single individual with multiple disabilities, challenged Glasgow City Council's (the respondent) decision to increase the taper—the percentage of income that must be contributed towards social care services—from 50% to 75%. This judicial review scrutinizes whether the policy change unlawfully discriminates against BB under the Human Rights Act 1998 and the Equality Act 2010, and whether the respondent failed to comply with its statutory duties in conducting an adequate Equality Impact Assessment (EIA).

Summary of the Judgment

Analysis

Precedents Cited

The judgment extensively references key precedents that shape the legal landscape surrounding discrimination and procedural fairness in social care policies:

• McCue v Glasgow City Council [2023] SC (UKSC) 69 - Established that local authorities must act fairly and rationally, considering relevant factors and ignoring irrelevant ones.
• R (Stott) v Secretary of State for Justice [2020] AC 51 - Outlined the four elements required to establish a claim under Article 14 of the ECHR.
• R (SH) v Norfolk County Council and another [2021] PTSR 969 - Addressed discrimination claims based on severe disability and the necessity of objective justification.
• R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484 - Discussed the breadth of "other status" in discrimination claims under the ECHR.
• McHattie v South Ayrshire Council 2020 SLT 399 - Highlighted the importance of thorough EIAs in policy changes affecting protected groups.
• B v Scottish Borders Council 2022 SLT 1311 - Explored legitimate expectations of consultation in public authority decision-making.
• R (Hillingdon London Borough Council) v Lord Chancellor [2008] EWHC 2683 - Clarified that authorities are not mandated to consult affected parties for every policy change.
• Swansea University Pension and Assurance Scheme Trusts v Williams [2018] UKSC 65 - Provided guidance on establishing unfavorable treatment under section 15 of the Equality Act 2010.

Legal Reasoning

The court meticulously dissected each ground of BB's challenge:

• Human Rights Act 1998 - Article 14: The court evaluated whether BB's characteristics—disability, age, and marital status—constituted an "other status" under Article 14, leading to discrimination. It concluded that BB's claim failed because his grouping of characteristics was too disparate and his definition of "severe disability" was vague.
• Equality Act 2010 - Sections 15, 19, and 20:
  • Section 15: The court found that BB was not treated unfavorably due to his disability, as the policy was applied uniformly based on care needs rather than inherent characteristics.
  • Section 19: The indirect discrimination claim was dismissed because BB's alleged disadvantage arose from a combination of characteristics, which current legislation does not recognize for such claims.
  • Section 20: The duty to make reasonable adjustments was not met by BB, as the minor adjustment to his charges (£10.59 increase) did not warrant the claimed failure.
• Procedural Grounds: The court acknowledged the respondent's failure to conduct an adequate EIA, citing a low survey response rate and inadequate measures to ensure accessibility for disabled respondents. However, it found no breach of the common law duty to consult, as prior consultation was not established as a legitimate expectation.

Impact

This judgment underscores the critical importance of conducting comprehensive Equality Impact Assessments when local authorities modify social care charging policies. It clarifies that while substantive equality is paramount, procedural compliance with statutory duties cannot be overlooked. Future cases will likely reference this decision when assessing the adequacy of EIAs and the scope of protected characteristics in discrimination claims within the context of public service provision.

Complex Concepts Simplified

Equality Impact Assessment (EIA)

An EIA is a process that helps public authorities understand the potential impact of a policy change on different groups, particularly those protected under equality legislation. It ensures that decisions do not inadvertently disadvantage certain groups and that necessary adjustments are made to promote fairness.

Protected Characteristics

Under the Equality Act 2010, protected characteristics include age, disability, race, gender, religion, and several others. Discrimination claims often hinge on whether a policy or practice unfairly disadvantages individuals with any of these characteristics.

Taper in Social Care Charging

The taper refers to the percentage of a person's income that must be contributed towards their social care services. An increase in the taper means individuals must dedicate a larger portion of their income to cover care costs.

Other Status (Article 14 ECHR)

"Other status" is a broad term under Article 14 of the ECHR that can include a variety of personal characteristics not explicitly listed, potentially encompassing factors like marital status, sexual orientation, or socio-economic background. Claims under "other status" require demonstrating that such status is directly linked to the discrimination suffered.

Conclusion

The BB v Glasgow City Council judgment delineates the boundaries of discrimination claims in the realm of social care charging policies. While it dismisses the substantive discrimination allegations made by BB, it spotlights the necessity for public authorities to conduct thorough Equality Impact Assessments. This ensures that policy amendments are scrutinized for potential biases and that the rights of vulnerable populations are safeguarded. The case serves as a precedent emphasizing that procedural diligence is as crucial as substantive equality, guiding future legal challenges and policy formulations in social care.