First published by The Ferret on 16 October 2020
A Glasgow-based mother plans to take Scotland’s largest council to the Supreme Court over the funding of care for her disabled son, in a case that may have far-reaching implications for families across the country.
Terri McCue is bringing the case on behalf of her 25-year-old son Andrew, who has Down’s Syndrome and receives a support package funded by Glasgow City Council.
As part of that package, he is provided with work experience in a garden centre three days a week, attends a social enterprise two days a week, and receives 20 nights of respite care every year.
The council pays for the majority of the package, but Andrew has been required to pay a proportion of it since turning 19 years old.
McCue argues that as all aspects of Andrew’s care stem from the fact he has Down’s Syndrome, he should not have to pay anything at all. The family has not paid any of the contributions required of them to date.
“My son can’t afford to pay it because his only income is PIP [Personal Independence Payment] and ESA [Employment and Support Allowance],” McCue said.
“If it was to be paid, it would come from me. But if I pay it that would be me admitting he can afford it, when he can’t.”
McCue’s position is that the local authority has incorrectly assessed Andrew’s disability related expenditure, amounting to discrimination under the terms of the 2010 Equality Act.
Having unsuccessfully argued that point in both houses of the Court of Session, her solicitors at Govan Law Centre are preparing to ask for permission to appeal the matter to the Supreme Court.
If successful, the case would have implications for all Scottish local authorities, which individually determine what they will accept as disability related expenditure under guidelines set out by umbrella organisation COSLA.
According to the 1968 Social Work (Scotland) Act, local authorities can charge for services provided to people with disabilities “so long as the charge is reasonable and the service user has the means to pay”.
COSLA, meanwhile, stipulates that charges must be “reasonable and practicable”.
A spokesman for COSLA said: “Understanding the associated additional daily living costs of living with an illness or a impairment is essential to ensure charging levels meet this test.
“Failure to take disability related expenditure into account as part of the financial assessment could result in charging levels which cause financial hardship and undermine the right of people living with an illness or impairment to live independently.”
The issue for McCue is that, unless service users pursue a specific complaint, there is no mechanism for ensuring that council charges meet the “reasonable and practicable” test.
She believes she has “no option” but to pursue the matter through the courts.
Glasgow City Council refutes the argument that its charging practices are discriminatory, or that the courts are the appropriate forum in which to challenge them.
At the Court of Session the local authority said all complaints should be handled by the Scottish Public Services Ombudsman (SPSO). The judge in the original case – Lord Jones – agreed.
However, the SPSO intervened in McCue’s Inner House appeal, arguing that it could only deal with complaints on a case-by-case basis and depending on the “particular circumstances” involved.
The Inner House is primarily the appeal court. It reviews decisions, mostly from the Outer House but also occasionally from the sheriff courts.
The three Inner House judges, Lady Dorrian, Lord Glennie and Lord Pentland, agreed.
“In circumstances where it is suggested to be a fact-specific, one-off issue, this would clearly be for the SPSO; where what was being suggested was a systemic failure across the board, essentially amounting to a negation of a policy, that might be considered a matter for the supervisory jurisdiction,” they wrote in their August 2020 judgment.
McCue’s lawyer, Govan Law Centre solicitor-advocate Mike Dailly, said he believes his client’s case falls into the latter category because Glasgow’s charging policy is “unduly restrictive” about what constitutes disability related expenditure.
He added that Scottish councils typically interpret the Equality Act more harshly than English local authorities do.
“My client’s appeal raises points of law of general public importance in Scotland as the court’s decision results in disabled persons being treated differently under the 2010 Equality Act as compared to the rest of the UK, where disability related expenditure is treated differently and more favourably than in Scotland,” Daily said.
“In the case of McCue, the Inner House of the Court of Session found that the scope and effect of the Equality Act was limited by the assessment of community care needs by a local authority when it came to charging for community care.”
He continued: “This interpretation restricts the scope of reasonable adjustments for disabled persons and means a disabled person’s disability related expenditure can only arise in very limited circumstances in Scotland, unlike in the rest of the UK.”
Glasgow City Council did not comment on McCue’s application to appeal to the Supreme Court, which is still pending.
However, a spokeswoman said the council’s position remains that the process it uses to assess individual social care budgets “is both lawful and based on robust social work practice”.
This process “has been tested in the courts, supported by the opinion of legal counsel and is subjected to regular scrutiny by service users, carers, trades unions and councillors,” she said.
“We are always willing to listen to those with a stake in the system and will make improvements where necessary. However, we are fully confident the personalisation system is being operated appropriately in Glasgow.”