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Charging people for home care is not unlawful, Court of Appeal rules

15 September 2009

A London council can charge for its home care services without breaching discrimination laws, the Court of Appeal has ruled.

Three disabled people claimed that Hammersmith and Fulham’s decision to charge amounted to discrimination against them under the Disability Discrimination Act 1995 and gender and race equality laws.

In R (on the application of Domb and others) v Hammersmith and Fulham LBC [2009] EWCA Civ 941, Lord Justice Sedley accused the council of “the sacrifice of free home care on the altar of a council tax reduction for which there was no legal requirement”.

He said that once it was decided that a three per cent tax cut had to be implemented, “the only practical choice for social services was going to be to raise the eligibility threshold or to charge for home care”.

Lord Clarke said he had similar misgivings, but both he and Lord Justice Sedley agreed with Lord Justice Rix in his leading judgment that the appeal by the disabled people must be dismissed.

Rix LJ said the Conservative-controlled council decided in June 2008 that it would charge for non-residential home care services under the Health and Social Services and Social Security Adjudications Act 1983. The council had previously charged for services between 2000 and 2006.

Three disabled people launched a judicial review to prevent the council bring back charges, including Deborah Domb, a wheelchair user.

Lord Justice Rix said the council held a consultation process over its proposals to resume charging over a 12-week period, including a questionnaire and 30 events. An equalities impact assessment was also undertaken.

Rix LJ said that more consultees opted for charging than cutting the eligibility threshold.

“It cannot be successfully suggested that that alternative to charging was not clearly before the cabinet, nor is it suggested that that would have been the preferable option but that it was the failure to put it sufficiently clearly before the cabinet that led the cabinet to fail to have due regard to it.”

Rix LJ said he agreed with the council that there was no “specific differential adverse impact” relating to gender or ethnic origin.

“Despite the somewhat higher percentage of black/black British or Asian/Asian British users of home care services compared with the percentage distribution of such ethnic minorities in the local population at large, nevertheless the ‘significantly lower mean and median average gross annual income’ for people of such backgrounds meant that there would be no disproportionately adverse impact.”

The Lord Justice said the point was essentially the same as regards gender, with the report to council cabinet members, stating that the fact that more women than men received home care was probably related to the fact that women lived longer than men.

He said it was not “unreasonable or perverse” for the council not to include specific mention of equality or gender duties in the report and instead concentrate on the impact on disabled people.

A spokeswoman for Hammersmith and Fulham Council said the local authority would be charging less than “the vast majority” of its London counterparts and that up to two thirds of users would not have to pay anything.

“We are very pleased at this emphatic vindication of the processes we went through in making the decision to charge.

“This legal challenge, while motivated by objections to the principle of charging, was never a strong one, but it has, nevertheless, taken considerable time and resources to defend.”

She added the council believed the majority of users would rather that the “better off minority” make contributions towards the cost of care than services were withdrawn completely.

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