Woman with Down Syndrome begins legal case against care charges

By agency reporter
April 28, 2020

A young woman who has Down Syndrome is making a legal case against newly imposed charges for respite care that her family fears will prevent her ever being able to become independent. The 24-year-old’s claim for judicial review was lodged at the High Court on Friday, 24 April.

She is represented by Leigh Day solicitors and the claim was made on her behalf by her mother, acting as her litigation friend. Her mother is concerned that the current costs of care are so expensive that she will not be able to afford to pay for the support that her daughter otherwise needs to help her prepare for independent living without pushing the family into serious financial difficulties.

The claim is being made against Norfolk County Council and the Secretary of State for Health and Social Care, Matt Hancock.

The mother is challenging the cut to her daughter’s Minimum Income Guarantee (MIG) from £189 a week to £151.45 a week. She is also challenging Norfolk County Council’s decision to include all of the Enhanced Daily Rate Living Personal Independence Payment (PIP) as part of the calculation of her daughter’s contribution to care charges from April 2020.

The changes mean she now has to pay from her DWP benefits towards care and a necessary personal assistant at the supported work experience placement she has had at a local business since January 2020. She also has to pay towards her one non-residential overnight respite care session per month and one residential overnight personal assistant a month.

The added charges mean her weekly income has the potential to be reduced by as much as 35 per cent. Charges she would face from April 2020 will be some £55 towards day care plus £80.75 per week towards respite care and would be even greater if she were in supported independent living. The figures include Disability Related Expenses (DREs).

The biggest impact due to the charges is likely to be that they will make it virtually impossible for the claimant to afford to move into supported independent living because she will not have enough leftover income to pay for it. The charges are likely to mean she will not be able to afford to socialise by going out with her friends or have the  singing/music lessons she wants because her remaining  disposable income will not stretch that far. She feels she will become isolated.

Leigh Day solicitor Rowan Smith makes the case that the charges contravene his client’s human rights on the following grounds:

1. The Charging Policy discriminates against severely disabled people who are not in work, contrary to Article 14 ECHR read with Article 1 of Protocol 1 and Article 8

2.  The Charging Policy indirectly discriminates against adults with Down Syndrome, contrary to sections 19 and 29 Equality Act 2010

3.   Norfolk County Council failed to discharge its Public Sector Equality Duty in implementing the second phase of cuts to the Minimum Income Guarantee.

The case is being supported by Disability Network Norfolk Group. A member of the group said: "These increased charges are being imposed on some of the most vulnerable young adults in our community, who will lose a large chunk of their income.

“These are people whose care needs are immense, whose life chances are already extremely limited, whose life choices will diminish as their families age. To deprive them of any of their income really isn’t the way to go." 

The mother of the claimant said: “I would very much like to see my daughter settled and happy and in supported independent living before I become too elderly too look after her, so she is not dealing with both the grief of losing me and a complete lifestyle change all at once.

“The current charges mean the costs of preparing for that change have become virtually impossible for us to meet.

“My daughter speaks of having a job, learning to drive, getting married, having a baby, seeing her family and friends. She has a right to dream of the same ambitions as her peers. Why should these ambitions be closed to her because the costs of learning to live independently are too high for a severely disabled person to meet?”

Leigh Day solicitor Rowan Smith said: “If a person in receipt of PIP is able to work, that earned income is not included in an assessment of that person’s care charges, quite rightly because the Government wants to encourage recipients to be increasingly independent.

“However, a person such as our client, who has Down Syndrome, associated learning difficulties and is a particularly vulnerable person in society, is obviously not able to earn an income in the same way. We make the case that therefore it is discriminatory to expect her to pay for her extra care costs out of her resulting lower income.”

* Leigh Day https://www.leighday.co.uk/

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