8 November 2010

FOURTH SECTION

Application no. 47997/10
by Richard Q. HAYES
against the United Kingdom
lodged on 18 August 2010

STATEMENT OF FACTS
THE FACTS
The applicant, Mr Richard Q. Hayes, is a British national who was born in 1943 and lives in Harrow.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant, who is tetraplegic, has been confined to a wheelchair since 1966. He lives alone and relies on home care to get out of bed and into his wheelchair in the morning, to get out of his wheelchair and into bed in the evening, and to take care of any housework.
Prior to May 2008, the applicant was not charged for homecare services as he was assessed as falling within the “nil contribution” band. Although he was employed, his income from employment was subject to a disregard because the Government's policy was to encourage disabled persons who were able to take up employment to do so.
In 2008 the applicant retired. He started to receive an occupational pension, but the income from this pension (GBP 120.39 per week) was less than half of what his income from employment had been. However, unlike his earnings, the income from his occupational pension was not subject to a disregard. Consequently, on 22 May 2008 he was informed by the local authority that he would have to make a contribution of the maximum charge of GBP 62.75 per week towards the home care services. That amount has since increased to GBP 74.39 per week.
On 7 June 2008 the applicant asked the local authority to review their decision to require a contribution. However, on 21 July 2008 the local authority upheld their earlier decision and advised the applicant to direct any further complaints to the Local Government Ombudsman. On 24 January 2009 the applicant wrote to the Local Government Ombudsman to complain about the way he had been treated, but he was notified on 28 May 2009 that as there had been no maladministration in the decision-making process, the Ombudsman had no jurisdiction to investigate the complaint.
The applicant then appointed a solicitor, who sought a further review of the local authority's decision. However, on 27 October 2009 the local authority again upheld their earlier decision. The solicitors then obtained Counsel's advice, which indicated that the inclusion of the applicant's occupational pension in the assessment of home care charges was lawful as it was in accordance with national guidance. Counsel further indicated that the Human Rights Act 1998 would not assist the applicant as national governments were afforded a wide margin of appreciation in the field of social policy and the distribution of resources. On 26 February 2010 the solicitor wrote to the applicant enclosing Counsel's opinion. On 26 June 2010 they wrote again to the applicant, confirming that there was no merit in taking the case any further.
B.  Relevant domestic law and practice
The power of the local authority to make reasonable charges for community care was contained in section 17 of the Health and Social Services and Social Security Adjudications Act 1983 (“the 1983 Act”). Section 17 provided that:
“(1) Subject to subsection (3) below, an authority providing a service to which this section applies may recover such charge (if any) for it as they consider reasonable.
(3) If a person—
(a) avails himself of a service to which this section applies, and
(b) satisfies the authority providing the service that his means are insufficient for it to be reasonably practicable for him to pay for the service the amount which he would otherwise be obliged to pay for it,
the authority shall not require him to pay more for it than it appears to them that it is reasonably practicable for him to pay.
(4) Any charge under this section may, without prejudice to any other method of recovery, be recovered summarily as a civil debt.”
In 2002 and 2003 the Department of Health issued national guidance on fairer charging policies for home care and other non-residential social services. The guidance stated as follows:
“15. The purpose of Government policies for social care is to promote independence and social inclusion. Charging policies should be seen within this overall context. As a minimum, users' incomes should not be reduced by charges below “basic” levels of Income Support, as defined in this guidance, or the Guarantee Credit of Pension Credit, plus a buffer of not less than 25%.
... ... ...
30. The mobility component of Disability Living Allowance is excluded by law from being taken into account for charges.
31. Disability-related benefits at issue in this section are the Severe Disability Premium (SDP) of Income Support, Attendance Allowance (AA), Disability Living Allowance (DLA), Constant Attendance Allowance (CAA), and Exceptionally Severe Disablement Allowance (ESDA).
32. These benefits may be taken into account as part of a user's income – although it is open to councils not to do this. Where these benefits are taken into account, councils should be guided by the overriding principles that charges:
- do not reduce the user's net income below basic levels of Income Support, plus 25%; and
- do not result in the user being left without the means to pay for any other necessary care or support or for other costs arising from their disability.
33. This aim is best achieved through charge assessments, which assess both the resources and expenditure of the user – expenditure should include any disability‑related expenditure. Councils are expected to assess disability-related expenditure specifically for all users whose disability-related benefits are taken into account as income. Councils should also consider and specifically consult users on any need to do this for other users, who may have disability-related expenditure.
34. Some councils may choose to disregard a standard element of disability benefits for all users receiving these. In these cases, any assessment of resources and expenditure should include an assessment of whether the individual user's disability‑related expenditure exceeds the level of the disregard.
... ... ...
57. Councils may take account of a user's savings or other capital in assessing their resources, but are not obliged to do so. This section includes minimum requirements for treatment of savings. Councils need to consider and consult specifically on their policy in relation to savings, including circumstances where individual users may have particular needs for savings (paragraph 94).
68. The Government's policy is to encourage and enable those who wish to take up employment, including disabled people and their carers, to do so. Charging policies should avoid creating disincentives to work.
69. Disincentives may be either disincentives to take work at all, or disincentives to work longer or earn more – neither is acceptable. Disincentives may arise because many social security benefits are income-related and so are withdrawn as earnings rise. For example, both Housing Benefit and Council Tax Benefit are withdrawn as earnings rise. Both these effects will be taken into account if councils follow the guidance at paragraph 75.vii below that housing costs and Council Tax should be assessed net of any Housing Benefit and Council Tax Benefit payable. If either benefit is withdrawn as earnings rise, increased net housing costs and Council Tax will be reflected in the assessment of expenditure.”
COMPLAINT
The applicant complains under Article 14 of the Convention that he has been discriminated against in respect of his access to home care services on account of his age and/or on account of the fact that he was retired.
QUESTIONS TO THE PARTIES
1. Has the applicant suffered discrimination in the enjoyment of his Convention rights on the ground of his age and/or the fact that he is retired contrary to Article 14 of the Convention read in conjunction with Article 8?

2.  Has the applicant suffered discrimination in the enjoyment of his Convention rights on the ground of his physical disability contrary to Article 14 of the Convention read in conjunction with Article 8?