McCue v Glasgow City Council (Scotland)

Factual and Procedural Background

The Appellant, acting as guardian for her adult son (“Service User”), challenged charges imposed by the Respondent (“The Council”) for community care services provided under the Social Work (Scotland) Act 1968. The Service User, who has Down’s Syndrome, receives weekday non-residential support through a Council-devised care plan. Pursuant to section 87 of the 1968 Act, the Council assessed the Service User’s means and set weekly charges. The Appellant contended that a wider range of “disability related expenditure” (DRE) should have been deducted from the Service User’s income, which would have reduced the charge to nil.

Between 2012 and 2018 the Appellant repeatedly asked the Council to deduct various costs (extra heating, transport, club fees, clothing, bedding, support-worker expenses, etc.). The Council accepted only limited deductions (£6.25 per week for clothing/footwear alterations and, later, £2.50 per week for additional laundry). All other items were rejected as ordinary living costs, already covered by welfare benefits, or discretionary spending.

After internal appeals and a complaints review committee upheld the Council’s position, the Appellant brought judicial review proceedings alleging disability discrimination under sections 15, 20 and 21 of the Equality Act 2010. The Court of Session (Outer House) dismissed the claim, primarily on alternative-remedy grounds but also on the merits. The Inner House rejected the alternative-remedy argument yet upheld dismissal on the merits. The Appellant appealed to the Supreme Court.

Legal Issues Presented

1. Whether the Council’s refusal to allow further DRE deductions in assessing community-care charges amounted to unfavourable treatment contrary to section 15 of the Equality Act 2010.
2. Whether the Council failed to comply with the duty to make reasonable adjustments under section 20 of the Equality Act by applying a provision, criterion or practice that placed the Service User at a substantial disadvantage.
3. Whether the courts below erred in limiting the concept of DRE to expenditure linked to needs already identified in the care-needs assessment under the 1968 Act.

Arguments of the Parties

Appellant's Arguments

• DRE is not confined to costs linked to assessed care needs; it includes any additional expenditure arising from disability that reduces available income.
• The Council’s practice (as pleaded) constitutes a discriminatory provision, criterion or practice: items were rejected if deemed discretionary, already covered by benefits, or not disability-related, thereby placing the Service User at a substantial disadvantage.
• The Council was obliged under sections 15 and 20 to deduct all evidenced DRE (clubs, transport, bedding, concert support, laundry, etc.) when calculating charges.
• The Council is barred from raising a proportionality defence under section 15(1)(b) because it neither pleaded nor evidenced such a case below.

Respondent's Arguments

• The charging scheme confers a benefit exclusively on disabled persons by permitting DRE deductions; it is not “unfavourable” within section 15.
• Any remaining difference in treatment is a proportionate means of balancing limited public resources and is justified.
• The Appellant’s section 20 claim fails because there is no “substantial disadvantage” once section 15 fails; the policy already provides for individualised DRE deductions.
• Deductions cannot include discretionary lifestyle choices or items already financed by disability-related benefits.

Table of Precedents Cited

Court's Reasoning and Analysis

Section 15 (Unfavourable Treatment): The Court identified the “treatment” as the Council’s application of section 87 of the 1968 Act, which already allows DRE deductions for disabled users. Following Swansea University Trustees, the Court held this treatment was favourable, not unfavourable; the Appellant’s complaint merely sought greater generosity. Therefore, section 15 was not engaged.

Section 20 (Reasonable Adjustments): The Court accepted that section 20 could, in theory, apply even where section 15 does not. However, the Appellant failed to identify a PCP that disadvantaged disabled persons compared with non-disabled users. The alleged practice (rejecting certain expenditures) applied only to disabled persons and, if anything, afforded them an advantage. Consequently, no substantial disadvantage within the meaning of section 20(3) was established.

Interpretation of Disability Related Expenditure: The Court clarified that DRE is not limited to costs meeting assessed care needs, rejecting the Outer House’s narrower approach. Nevertheless, the Council’s actual decisions on individual items were evaluative judgments under section 87(1A), and no irrationality or public-law error was alleged. Thus, even on the correct legal test, the Council’s refusal to deduct the disputed items was lawful.

Holding and Implications

APPEAL DISMISSED.

The Supreme Court affirmed that the Council’s charging methodology, including its discretionary allowance for DRE, did not breach sections 15 or 20 of the Equality Act 2010. The immediate effect is that the Service User remains liable for the assessed weekly charge. The judgment clarifies that:

• A benefit tailored for disabled persons is not “unfavourable treatment” merely because it could have been more generous.
• Claimants invoking section 20 must pinpoint a provision, criterion or practice that creates comparative disadvantage, not simply disagree with discretionary outcomes.
• Local authorities retain wide evaluative discretion under section 87 of the 1968 Act, provided public-law standards are met.

No new precedent altering the statutory framework was created; the decision primarily elucidates the interaction between the Equality Act and existing charging powers.