February 01 2010
Home Care Charges Deemed Lawful

The 2008 decision by Hammersmith and Fulham Council to start charging for the provision of home care services was not unlawful. So ruled the Court of Appeal after three disabled people challenged the Council’s decision on the grounds that it was in breach of the Disability Discrimination Act 1995 and gender and race equality laws. Their contention was that disabled people and black/black British or Asian/Asian British users and women would be disproportionately affected by the change. The Council had decided to begin charging for its non-residential home care services under the Health and Social Services and Social Security Adjudications Act 1983. A judicial review was then instigated by the three disabled people to prevent the charges being enforced. The judges found that the Council had carried out a twelve-week consultation on the available options, after which it concluded that the best course of action was to charge for the services rather than to change the eligibility threshold. It was clear that the Council had considered the choices available to it and had not failed to examine each of them fully. The Court agreed with the Council that its decision had no specific differential adverse effect with regard to disability, gender or ethnic origin. It was held that the Council had not failed specifically to consider the effects on these groups and any difference in treatment was attributable to social factors and was not therefore discriminatory. Women tend to live longer than men and although there were more ethnic minority users of the services, the fact that their earnings were generally lower than those of non-minority users meant that the charges would not have a disproportionately adverse impact on them. The judges decided unanimously that the appeal had to be dismissed. It was however stated that there was no legal requirement for the introduction by the Council of a three per cent council tax reduction, which was the reason for its inability to continue to provide the free health care. The inevitable consequence of the Council’s decision was going to be either a need to raise the eligibility threshold or to charge for services. Despite the judges’ misgivings, they concluded that in charging for these services the Council was not acting unlawfully.