On Friday, 26 January 2024, Lord Braid having heard counsel for parties at the oral hearing and having considered the petition and answers thereto, extended the time period under Section 27A of the Court of Session Act 1988; and being satisfied that the test in Section 27B(2) of the Court of Session Act 1988 had been met, granted permission for the petition to proceed; and assigned Friday 23 February 2024 at 10.00am as the date for the substantive hearing.
The background to the challenge is as follows. In March last year, Glasgow City Council (GCC) amended its Social Work Services Social Care Charging Policy (“Charging Policy”), increasing the charges it levies on disabled and non-disabled persons who require non-residential social care services, such as home care.
An initial increase in weekly charges was implemented when the UK government uprated various welfare benefits by 10.1% from 6 April 2023. However, from 24 April 2023, the charges for disabled persons who were single, under 60 years of age and requiring 3.5 hours or more of social care per week were increased by a further 50%.
For some people with disabilities in Glasgow this represented a 65% increase in relation to charges before 10 April 2023 or a 50% increase in relation to charges from 10 April 2023. Many other service users have had no or much lower increases on a pro rata basis.
In November last year, Govan Law Centre lodged a petition for judicial review in the Court of Session in Edinburgh on behalf of a client challenging the lawfulness of the Charging Policy with respect to certain disabled service users in Glasgow – B v. Glasgow City Council – which will now be heard next month.
The strategic test case challenges the Charging Policy on the following grounds:
(a) The financial taper increase to the Charging Policy from 50% to 75% was a provision, criterion or practice (“PCP”) that discriminated against the petitioner by its disproportionate financial impact on him because of his higher social care needs arising in consequence of his disability, contrary to sections 15 and 29 of the 2010 Act;
(b) The PCP discriminated against disabled persons, such as the petitioner, who were single, under 60 years of age and required 3.5 or more hours of social care each week in comparison to disabled or non-disabled persons requiring 3 hours or less of social care each week, contrary to sections 19, 23 and 29 of the 2010 Act;
(c) GCC ought to have made reasonable adjustments to its PCP to prevent a disproportionate financial impact on persons who were single, under 60 years of age and with higher social care needs in consequence of a disability in terms of sections 20 and 29(7) of the 2010 Act; and
(d) GCC failed to properly exercise its duties to undertake an adequate Equality Impact Assessment in terms of section 149 of the 2010 Act and the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (SSI 2012/162 before determining its PCP et separatim failed to properly consult service users about its PCP at Scots common law.
The solicitor for the petitioner is Charis Brooks who has instructed GLC’s Mike Dailly, Solicitor Advocate. Laura McDonagh, Partner at Drummond Miller LLP act as Edinburgh agents. The respondent is represented by GCC’s legal services department, Harper Macleod LLP as Edinburgh agents and Ruth Crawford KC and D Blair, Advocate.