BB FOR JUDICIAL REVIEW

Factual and Procedural Background

This opinion concerns a judicial review petition brought by the Petitioner challenging the Respondent's social care charging policy under section 87 of the Social Work (Scotland) Act 1968. The Respondent, a local authority, provides social care services in Glasgow and levies charges on service users based on a policy updated annually. The Petitioner, a disabled single person aged 40, receives 15.5 hours of social care weekly and was subject to an increase in his weekly charge from £68.59 to £103.14 following a change in the Respondent's charging policy, specifically an increase in the financial taper applied in calculating charges. After a financial reassessment recognizing Disability Related Expenditure (DRE), the charge was reduced to £72.59, representing a smaller increase than initially imposed. The Petitioner challenges the increase in the taper as unlawfully discriminatory and contends that the Respondent failed to comply with equality duties and procedural fairness. The Respondent admits to an inadequate Equality Impact Assessment (EIA) but denies unlawful discrimination or breach of consultation duties. The court addresses multiple grounds of challenge, including human rights and discrimination claims, as well as procedural complaints regarding the EIA and consultation.

Legal Issues Presented

1. Whether the increase in the taper under the Respondent's social care charging policy unlawfully discriminates against the Petitioner contrary to the Human Rights Act 1998 and the Equality Act 2010.
2. Whether the Respondent failed to make reasonable adjustments as required under sections 20 and 29 of the Equality Act 2010.
3. Whether the Respondent breached its duty under section 149 of the Equality Act 2010 by failing to undertake an adequate Equality Impact Assessment before implementing the charging policy change.
4. Whether the Respondent breached any common law duty to consult service users prior to implementing the increased taper.
5. The appropriate remedy for any failure to comply with equality duties or procedural fairness.

Arguments of the Parties

Appellant's Arguments

• The increase in the taper disproportionately impacts the Petitioner, a single, severely disabled person under 60, resulting in a greater percentage increase in charges than other comparator groups.
• The charging policy change constitutes a "provision, criterion or practice" (PCP) that unlawfully discriminates against the Petitioner under sections 15, 19, and 20 of the Equality Act 2010 and breaches the Human Rights Act 1998.
• The Respondent failed to carry out an adequate Equality Impact Assessment as required by section 149 of the Equality Act 2010 and associated regulations.
• The Respondent breached a common law duty to consult service users about the charging policy change.
• The Respondent should have made reasonable adjustments to ensure the financial impact was more proportionate across service users.
• The appropriate remedy is reduction (quashing) of the decision to increase the taper, restoring the previous 50% level.

Respondent's Arguments

• The Petitioner’s identified "status" arises from a combination of disability, age, and marital status, which is impermissible for discrimination claims under the Equality Act 2010.
• The charging policy, including the 75% taper, is a proportionate means of achieving legitimate aims such as balancing public finances and ensuring those who use more services contribute more.
• The increase in taper does not discriminate; differences in charges reflect differing levels of care received rather than unlawful discrimination.
• The Petitioner is not treated unfavourably due to disability alone, and the policy is not less generous than required by law.
• The Respondent admits the Equality Impact Assessment was inadequate but denies any breach of common law consultation duties, noting no legitimate expectation of consultation existed.
• The right to request financial assessments and waivers provides effective safeguards against unreasonable charges.
• Reduction of the taper increase is not equitable or practical, particularly as a new policy review is underway.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
McCue v Glasgow City Council 2023 SC (UKSC) 69	Local authority discretion under section 87 of the Social Work (Scotland) Act 1968 must be fair and rational; onus on service user to show what is reasonably practicable.	Guided the court’s understanding of the Respondent’s charging discretion and the nature of “unfavourable treatment” under section 15.
R (Stott) v Secretary of State for Justice [2020] AC 51	Four-element test for establishing discrimination under Article 14 of the ECHR.	Framework applied to assess the Petitioner’s human rights claim under Article 14.
R (SH) v Norfolk County Council and another [2021] PTSR 969	Recognition of “severely disabled” as “other status” for Article 14 claims; unlawful discrimination where charging policy disproportionately impacts severely disabled.	Considered analogous but distinguished on facts; Petitioner’s status not sufficiently precise or independent.
R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484	“Other status” cannot be defined by the treatment complained of; importance of assessing all circumstances.	Informed the court’s nuanced approach to the Petitioner’s claimed status and discrimination.
R (DA) v Secretary of State for Work and Pensions [2019] 1 WLR 3289	Socio-economic policy decisions require manifest absence of reasonable foundation to be unlawful discrimination.	Supported the Respondent’s justification of the charging policy as proportionate and objectively justified.
McHattie v South Ayrshire Council 2020 SLT 399	Explanation of duties under section 149 of the Equality Act 2010 and public sector equality duty.	Referenced in relation to the adequacy of the Equality Impact Assessment.
B v Scottish Borders Council 2022 SLT 1311	Legitimate expectation of consultation may arise from sufficient interest; consultation as aspect of procedural fairness.	Considered in assessing whether the Petitioner had a legitimate expectation of consultation.
R (Stirling) v Haringey London Borough Council [2014] 1 WLR 3947	No general duty to consult; legitimate expectation arises only in certain circumstances.	Supported the Respondent’s position on absence of common law consultation duty.
R (Hillingdon London Borough Council) v Lord Chancellor [2008] EWHC 2683	Authorities not necessarily required to consult those disadvantaged by decisions.	Used to support the Respondent’s submission on consultation obligations.
Swansea University Pension and Assurance Scheme Trustees v Williams [2018] UKSC 65	Section 15 discrimination requires unfavourable treatment because of something arising in consequence of disability.	Applied in assessing whether the Petitioner suffered unfavourable treatment under section 15.

Court's Reasoning and Analysis

The court analysed the Petitioner’s claims by reference to the statutory and human rights frameworks governing discrimination and equality duties. It emphasized that the relevant comparator groups encompass all service users charged for social care, including those receiving varying hours of care. The court found the Petitioner’s reliance on a combined status of severe disability, age, and marital status problematic, noting that “other status” must be sufficiently defined and independent of the treatment complained of. The Petitioner’s definition of severe disability based on hours of care received was considered vague and elastic, undermining the claim.

On the Human Rights Act claim, the court accepted that while a severely disabled status can constitute “other status,” the Petitioner failed to establish that the charging policy or taper increase discriminated against him on that basis. The differences in charges were attributed to socio-economic policy considerations, which were proportionate and justified by legitimate aims such as budget balancing and charging those who use more services more.

Regarding the Equality Act claims under sections 15 and 19, the court found no unfavourable treatment solely because of disability, especially given the Petitioner’s reliance on age and marital status characteristics. The court rejected the Petitioner’s argument that the taper increase was insufficiently generous, aligning with precedent that policy generosity does not equate to unlawful discrimination.

In relation to the duty to make reasonable adjustments under section 20, the court noted the Respondent’s provision of Disability Related Expenditure and waiver mechanisms as reasonable adjustments. The small net increase in charges after reassessment further undermined the claim of failure to adjust.

On procedural grounds, the Respondent admitted the Equality Impact Assessment was inadequate, and the court granted a declarator accordingly. However, the court rejected the claim of breach of common law consultation duty, finding no legitimate expectation of consultation given the nature of the policy change and relevant precedents.

Finally, the court considered the remedy sought by the Petitioner—reduction of the taper increase—but concluded it was not equitable or practical, especially given the ongoing policy review and availability of financial assessments. The court emphasized that the increase did not amount to unlawful discrimination and that the Respondent’s charging framework allowed for individual flexibility.

Holding and Implications

The court issued the following rulings:

• Declarator granted that the Respondent failed to undertake an adequate Equality Impact Assessment under section 149 of the Equality Act 2010 prior to implementing the increase in the taper.
• Declarator refused regarding any breach of common law consultation duties.
• The Petitioner’s substantive discrimination and reasonable adjustment claims were rejected.
• The petition was refused in all other respects.

The direct effect is that the Respondent must recognize its failure to comply with the public sector equality duty via the inadequate EIA but is not compelled to reverse the taper increase. No new legal precedent was established; the decision reiterates established principles on discrimination claims involving combined status characteristics and the scope of procedural fairness in policy changes. The Respondent’s charging policy, including the increased taper, remains lawful and proportionate, with safeguards such as financial assessments and waivers available to service users.