A guardian for a disabled man challenged Glasgow City Council’s assessment of charges for community care services, arguing insufficient deductions for disability-related expenditure constituted unlawful discrimination under the Equality Act 2010. The Supreme Court held the Council’s charging approach was not discriminatory under sections 15 or 20, as the treatment was favourable to disabled persons, not unfavourable.
Background
The appellant, Mrs Terri McCue, acted as guardian for her son Andrew McCue, a 27-year-old man with Down’s Syndrome. Mr McCue received community care services from Glasgow City Council (‘the Council’) under the Social Work (Scotland) Act 1968 (‘the 1968 Act’). The Council assessed Mr McCue’s means and levied charges for these services pursuant to section 87 of the 1968 Act. Over several years from 2012, the appellant made representations that various items of disability-related expenditure (including additional heating, specialist clothing, laundry costs arising from medical creams, costs of attending specialised social clubs, and additional transport costs) should be deducted from Mr McCue’s assessable income, thereby reducing or eliminating the charge levied. The Council accepted only limited deductions of £6.25 per week for clothing alterations and footwear, and later £2.50 per week for additional laundry, but rejected the remainder. The appellant did not challenge the adequacy of the Council’s support plan, nor did she argue the charging decision was irrational on general public law grounds.
The Issue(s)
The central questions were:
Section 15 of the Equality Act 2010
Whether the Council’s assessment of charges, by not making greater deductions for disability-related expenditure, constituted unfavourable treatment of Mr McCue because of something arising in consequence of his disability.
Section 20 of the Equality Act 2010
Whether the Council’s charging practice constituted a provision, criterion or practice (‘PCP’) which put Mr McCue, as a disabled person, at a substantial disadvantage in comparison with non-disabled persons, thereby triggering a duty to make reasonable adjustments.
The Parties’ Key Arguments
The Appellant
The appellant contended that the Council’s refusal to deduct the full range of claimed disability-related expenditure constituted discrimination under section 15 and a failure to make reasonable adjustments under section 20. She argued that Mr McCue’s disability operated 168 hours per week, not merely the 30 hours covered by the support plan, and that all disability-related expenditure should be deducted. She also submitted that the Council could not rely on a proportionality defence under section 15(1)(b) as this had not been pleaded or evidenced below.
The Respondent
The Council argued that its treatment of Mr McCue was not unfavourable but rather conferred a benefit unique to disabled persons—namely, the possibility of deductions for disability-related expenditure that non-disabled persons could not claim. Relying on Trustees of Swansea University Pension and Assurance Scheme v Williams [2018] UKSC 65, the Council contended that treatment which is advantageous cannot be unfavourable merely because it is not generous enough. It further argued that the same practice could not put disabled persons at a disadvantage under section 20(3) because it applied only to disabled persons and conferred an advantage upon them.
The Court’s Reasoning
Operation of Section 87 of the 1968 Act
Lord Sales, giving the unanimous judgment, clarified that ‘disability related expenditure’ is not a statutory term but rather a term used in guidance and policy to indicate expenditure so unavoidably imposed by disability that a local authority should treat it as reducing available means. The relevant statutory question under section 87(1A) was whether the Council was satisfied that Mr McCue’s means were insufficient for it to be reasonably practicable for him to pay the assessed charge.
Lord Sales corrected the Outer House’s approach, holding that Lady Wolffe erred in confining disability-related expenditure to expenditure meeting needs assessed under the support plan:
In the context of applying section 87 it is wrong to say that disability related expenditure has to be expenditure used to meet the needs of the individual as assessed by a local authority under sections 12 and 12A of the 1968 Act.
However, since the appellant did not challenge the Council’s decision on general public law grounds, the lawfulness of the assessment itself was not in issue.
Section 15 Analysis
The court held that the relevant treatment was the Council’s application of section 87 and its evaluation of deductions. The Council applied the same basic charging scheme to disabled and non-disabled persons alike but additionally allowed disabled persons to claim deductions for disability-related expenditure—a favourable extension unavailable to non-disabled persons. The appellant’s true complaint was that this favourable treatment was insufficiently generous.
Lord Sales applied the reasoning in Swansea University Trustees, quoting with approval from that case:
treatment which is advantageous cannot be said to be ‘unfavourable’ merely because it is thought it could have been more advantageous, or, put the other way round, because it is insufficiently advantageous.
Lord Sales emphasised, however, that this did not mean a favourable feature in a policy necessarily rules out any section 15 claim:
The overall policy or approach adopted by a defendant may establish a normal standard of conferral of benefits from which it might be possible to identify a departure adverse to disabled persons, even though they receive benefits under the policy or approach so that it can be said that, in a certain sense, they are complaining that the policy is not favourable enough for them.
Had the appellant shown that the Council applied a stricter standard for disability-related deductions than for other necessary expenditure deductions available to non-disabled persons, a section 15 claim might have been arguable—but this case was not presented.
Section 20 Analysis
Lord Sales rejected the Council’s argument that failure under section 15 necessarily entailed failure under section 20, noting the provisions are distinct. Section 20(3) is capable of addressing indirect discrimination where an apparently neutral PCP bites harder on disabled persons. He cited Elias LJ in Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265:
The fact that [the disabled person and the non-disabled person] are treated equally and may both be subject to the same disadvantage … does not eliminate the disadvantage if the PCP bites harder on the disabled, or a category of them, than it does on the able bodied.
However, the PCP identified by the appellant—the Council’s practice regarding assessment of disability-related expenditure—applied only to disabled persons and conferred an advantage upon them relative to non-disabled persons. It did not put Mr McCue at any comparative disadvantage and thus could not found a claim under section 20(3).
Practical Significance
This decision clarifies the interaction between the Equality Act 2010 and local authority charging discretion for community care services. Key points include:
- A charging policy that provides additional deductions for disability-related expenditure, over and above what is available to non-disabled persons, is not rendered discriminatory under section 15 merely because a claimant considers the deductions insufficiently generous.
- The concept of disability-related expenditure is not confined to expenditure meeting assessed needs under the support plan; it can extend to other pressing disability-related costs.
- A PCP that applies exclusively to disabled persons and confers an advantage upon them cannot found a section 20(3) reasonable adjustments claim, as it cannot produce a comparative disadvantage.
- However, if a local authority were shown to apply a stricter standard when evaluating disability-related deductions than it applies to analogous deductions for non-disabled persons, a discrimination claim might succeed.
- Claimants wishing to challenge the substance of charging assessments may need to pursue general public law grounds (irrationality, failure to consider relevant factors) rather than relying solely on the Equality Act.
Verdict: The appeal was dismissed. The Supreme Court held, for reasons differing from those of the courts below, that the Council had not discriminated against Mr McCue under section 15 of the Equality Act 2010 (the treatment was not unfavourable but rather conferred an advantage on disabled persons) nor under section 20 (the relevant practice applied only to disabled persons and could not produce a comparative disadvantage). The appellant’s challenge to the Council’s charging assessment accordingly failed.
Source: McCue v Glasgow City Council (Scotland) [2023] UKSC 1
