England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		12 October 2004

Mr Justice Keith:

The facts

1. The Claimant, Mrs Evelyn Stephenson, is 78 years old. She lives alone in warden-controlled sheltered accommodation which she rents from the Defendant, Stockton-on-Tees Borough Council ("the Council"). She is in poor health, and is virtually housebound as a result. She receives a severe disability premium and an attendance allowance to enable her to pay for her additional needs.
2. In addition, the Council provides her with home care support four times a day. Carers help her to get washed and dressed, they prepare her meals for her and do some housework for her. Her needs were recently assessed by the Council and the care plan produced as a result of that assessment suggested 13¾ hours of home care support each week.
3. Mrs Stephenson is fortunate to have much support from her daughter, Mrs Diane Pennock, who is an experienced nurse. Mrs Pennock does many of the things which Mrs Stephenson's carers do not do. For example, she does Mrs Stephenson's laundry and ironing, she deals with her correspondence and finances, she does some of the housework which the carers do not do, and she looks after her feet and cuts her nails. In addition, she takes Mrs Stephenson out in her car once a week. In that way, Mrs Stephenson can regularly see her elderly brother, and can do her own shopping.
4. Mrs Pennock used to work a normal working week. In October 2002, she decided to reduce her working week to thirty hours over four days in order to spend more time with her mother. Mrs Stephenson was unwilling to let Mrs Pennock do that without at least partly compensating her for her loss of earnings. It was agreed that Mrs Stephenson would pay her £45.00 a week for the care which she was providing. In August 2003, Mrs Pennock stopped working even a four day week. This allowed her to spend even more time with her mother, and she now looks after her mother for at least two days a week.
5. The Council charges Mrs Stephenson for the home care support it provides. Those charges take into account Mrs Stephenson's income. In assessing what her income is, the Council took into account the severe disability premium and attendance allowance which she was receiving. It then had to decide what Mrs Stephenson's expenditure was in respect of her disabilities, because the Council proposed to reduce the amount which her income was assessed as being by the amount of that expenditure. In determining what that expenditure was, the Council ignored the £45.00 a week which Mrs Stephenson was paying to her daughter. That approach was in accordance with the Council's policy, when assessing income, of not taking into account the cost of care provided by a family member. That policy is challenged on this claim for judicial review. There is also a challenge to some aspects of the calculation of Mrs Stephenson's expenditure in respect of her disabilities.

The statutory and local framework

6. Section 17(1) of the Health and Social Services and Social Security Adjudications Act 1983 gives local authorities "providing a service to which [section 17] applies [the power to] recover such a charge (if any) for it as they consider reasonable". It has not been suggested that the services provided by the Council to Mrs Stephenson are not services to which section 17 relates. Section 17(3) provides relief for persons who may not be able to pay for such services. It provides:

"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 amounts 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."

It has not been suggested that Mrs Stephenson's means are insufficient for it to be reasonably practicable for her to pay what the Council is charging her for the services which it provides to her.

7. In Avon County Council v Hooper [1997] 1 WLR 1605, Hobhouse LJ (as he then was) said at p. 1610B that "there is an overriding criterion of reasonableness which governs the local authority's exercise of the power which is given by subsection (1)". That was said in the context of the issue in that case, which was whether the local authority should have exercised its power to charge for the services which it provided at all. In the present case, it is not suggested that it is unreasonable for the Council to charge Mrs Stephenson for the services provided to her. It is the amount of the charge which is in question. Since the Council can recover such charge "as they consider reasonable", it is for the Council to determine what amount is reasonable, and its view as to what is reasonable can only be interfered with on conventional public law grounds. This analysis was not disputed by Mr Ian Pennock for Mrs Stephenson.
8. However, that is subject to section 7(1) of the Local Authority Social Services Act 1970, which provides:

"Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State."

In R v Islington London Borough Council ex p. Rixon (1998) 1 CCLR 119, Sedley J (as he then was) considered the meaning and effect of that obligation. He noted at p. 123G that "guidance is less than direction, and the word 'general' emphasises the non-prescriptive nature of what is envisaged". But he went on to say at p. 123H-J:

"In my judgment Parliament in enacting section 7(1) did not intend local authorities to whom ministerial guidance was given to be free, having considered it, to take it or leave it. Such a construction would put this kind of statutory guidance on a par with the many forms of non-statutory guidance issued by departments of state. While guidance and direction are semantically and legally different things, and while 'guidance does not compel any particular decision' (Laker Airways Ltd. v Department of Trade [1977] QB 643, 714 per Roskill LJ), especially when prefaced by the word 'general', in my view Parliament by section 7(1) has required local authorities to follow the path charted by the Secretary of State's guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course."

9. In September 2003, the Secretary of State for Health issued such guidance for local authorities. The document in which that guidance was contained was called "Fairer Charging Policies for Home Care and other non-residential Social Services". The passages in the guidance which are relevant for present purposes are the following:

(i) "For users who receive other income in addition to Income Support ….. taking them above the basic levels, (usually disability-related benefits such as Attendance Allowance (AA) ….. , but also including SDP [severe disability premium]), councils may choose: either to exempt such users from charges regardless of their additional income, or to include the user's overall income within a charge assessment. Where councils choose the latter, the aim should be to ensure that any charge levied does not reduce the user's net income below basic levels of income support ….. plus 25%" (para. 22).

(ii) "[Severe disability premium and attendance allowance] 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 necessary care or support or for other costs arising from their disability" (para. 32).

(iii) "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" (para. 33).

(iv) "It is not possible to give a completely comprehensive list of disability-related expenditure, which could legitimately be claimed for. Councils will need to develop local policies consistent with this guidance ….. The overall aim should be to allow for reasonable expenditure needed for independent living by the disabled person. Items where the user has little or no choice other than to incur the expenditure, in order to maintain independence of life, should normally be allowed" (para. 44).

(v) "The process of assessment and claiming for items of disability-related expenditure should not be made unduly complex, particularly for users without high care needs ….. The approach should support self-assessment by the user as much as possible, taking a holistic view of the user's finances and personal needs, both to support the user's own independence of living and to ensure that any charge assessed is reasonable" (para. 45).

(vi) "In assessing disability-related expenditure, councils should include the following: …..

Costs of any privately arranged care services required …..

Costs of any speciality items caused by disability – eg: ….. purchase, maintenance, and repair of disability-related equipment ….." (para. 46).

(vii) "Costs of infrequently purchased equipment will normally be annualised or amortised over a reasonable period for replacement and divided into a weekly equivalent" (para. 48).

The guidance contains no reference to whether the cost of care provided by a family member should be treated as expenditure relating to the recipient's disability.

10. Thus, what the guidance contemplates is that if a local authority decides to charge for a particular service, it should assess what the recipient's income is. In making that assessment, it should decide whether to include in the recipient's income any severe disability premium or attendance allowance which the recipient is receiving. If it decides to include those benefits in the recipient's income, it should assess what the recipient's expenditure relating to his or her disability is, and reduce the amount which the recipient's income is assessed as being by the amount of that expenditure. However, the result of that assessment should leave the recipient with a basic level of income (plus a buffer of 25%), and should not leave him or her "without the means to pay for any other necessary care or support". It is not suggested that the assessment left Mrs Stephenson with an income which was less than the basic level of support (plus a buffer of 25%), or without the means to pay for necessary care or support.
11. The guidance issued by the Secretary of State in September 2003 built on previous guidance which had been issued. As a result of that previous guidance, the Council considered what policies it should adopt. It decided to continue to charge for the services which it provided, and to take the recipient's income into account in deciding what charges to impose. It decided to include any severe disability premium and attendance allowance received by the recipient in the recipient's income, and to take the recipient's expenditure relating to his or her disability into account. It followed the formula of ensuring that the recipient would not be left with less than a basic level of income plus a buffer of 25%. As for the assessment of the recipient's expenditure relating to his or her disability, the Council's policy was:

"The Council will carry out an assessment of disability-related expenditure to allow reasonable costs to be taken into account before charges are calculated based on the items shown and will consider any other items identified by Service Users."

12. Pursuant to the Council's scheme of delegation, the Council's Director of Social Services (now known as the Head of the Health and Social Care Service) had to work out the details of how a recipient's expenditure relating to his or her disability was to be calculated in the light of this broad policy statement. Those details were set out in a document headed "Social Services Framework for Disability Related Expenditure". For privately arranged care services, the document read as follows:

"Allow the number of hours identified (and not provided for) at an hourly rate of no more than the current rate Stockton Social Services pay to independent provider (currently £8.20 per hour)

note

Allowance will not be made if care is provided by a family member.*

* exception to this rule is when the assessment identifies cultural issues."

I shall refer to the note as "the family member rule".

13. Although the note suggests that the exception to the family member rule will only be permitted where cultural issues come into play, that is not the case. That emerged in correspondence following Mrs Stephenson's internal appeal against the Council's refusal not to take into account the £45.00 a week which she paid to Mrs Pennock. In a letter to Mrs Stephenson's solicitors dated 26 March 2004, the Council's Head of Legal Services wrote:

"….. where care is provided by a family member from necessity, (because of cultural or other exceptional circumstances), rather than by choice, an exception to the general rule will be considered to enable persons of particular racial groups, or with particular needs, fair access to services that meet their special needs. However, if a special need cannot be identified, the exception to the general rule will not apply."

Although there was no evidence to this effect, I was told by Mr Clive Sheldon for the Council that the reason why this was not mentioned in the document referred to in the previous paragraph was because the Council was always willing not to apply the family member rule if exceptional circumstances justified treating someone exceptionally.

14. The Council does not accept that everything which Mrs Pennock does for Mrs Stephenson amounts to care. But it does accept that those things which Mrs Pennock does for Mrs Stephenson which the Council accepts amounts to care would, if done by an agency or professional carers, cost Mrs Stephenson more than £45.00 a week. Accordingly, it is common ground that the only reason why the £45.00 was not taken into account by the Council in determining what part of Mrs Stephenson's expenditure related to her disability was because the care was provided to her by her daughter, and because the family member rule therefore applied.

The attack on the family member rule: irrationality

15. Mr Pennock's principal attack on the family member rule was that it was irrational. If a family member provides care which would have been provided by an agency or professional carers, and if the family member is paid by the person to whom the care is provided no more than the agency or professional carers would have charged, why should the cost of that care be treated differently? The Council might well be concerned to avoid fraudulent claims, i.e. claims that the family member makes a charge for the care which is being provided when in truth no such care is being provided or no such charge is being made, or when no such charge would be made but for the fact that expenditure relating to the recipient's disability reduces the recipient's income for the purpose of determining what charges are to be made for home care support. But that concern could be met by the Council deciding each case on an individual basis rather than imposing a blanket ban on the cost of care provided by a family member being taken into account. If the Secretary of State had thought that the adoption by local authorities of the family member rule was appropriate, he could have chosen to provide for it in the guidance. The fact that he did not do so suggests that he thought that the family member rule would be too prescriptive.
16. I cannot go along with these arguments. If the letter of 26 March 2004 is anything to go by, the rationale for the family member rule is that care which is provided by family members is normally provided voluntarily. That is so even if the care which is provided is essential to the disabled person's needs. Care which is given voluntarily is not usually charged for. Thus, if a disabled person chooses to pay for care which the carer would have been prepared to provide without charge, payment for that care should not be treated as expenditure relating to the disabled person's disability. As Mr Anthony Beckwith, the Head of Policy of the Council's Health and Social Care Service, said in para. 5 of his first witness statement:

"It has been a general premise within Social Care nationally that any care provided by close family members is done so on a voluntary basis. Rather as children do not typically pay parents for the care given in childhood it is expected that parents do not pay their children to provide care in later life. Clearly such arrangements may well exist but the view is taken within this Council that there are other means by which a carer can be compensated for providing care especially through benefits."

There may be exceptional cases in which the care has to be provided by a close relative. In those circumstances, the care would be provided (to use the language of the letter of 26 March 2004) "from necessity ….. rather than by choice". Where that is the case, an exception may be made.

17. I do not regard thinking along these lines as irrational. Indeed, there is some support for it in the reference to choice in the sentence in para. 44 of the ministerial guidance that "[i]tems where the user has little or no choice other than to incur the expenditure, in order to maintain independence of life, should normally be allowed". The care which Mrs Pennock provides is extremely important for Mrs Stephenson. It gets her out of the house, it enables her to maintain her links with her brother, and it makes her feel more in touch with the world. And the tasks which Mrs Pennock does for Mrs Stephenson at her home supplements the home care support she receives. But the Council was entitled to assume that the arrangement between Mrs Stephenson and Mrs Pennock was what one might expect within families, namely that Mrs Stephenson did not have to pay Mrs Pennock for what Mrs Pennock was doing for her. Mrs Pennock would have provided this care without charge, and it was Mrs Stephenson who chose to pay her for it. In other words, the Council was entitled to assume that the £45.00 a week was expenditure which she chose to incur. Neither Mrs Stephenson nor Mrs Pennock ever told the Council otherwise, not even when Mrs Stephenson lodged her internal appeal against the Council's decision.
18. Indeed, not even now do Mrs Stephenson or Mrs Pennock suggest otherwise. In paras. 9 and 27 of her witness statement, Mrs Stephenson said:

"I only agreed to my daughter reducing her working hours to look after me on the basis that I recompensed her a little, to at least cover her travel expenses ….. Since June last year my daughter has given up work completely and now spends a lot more time caring for me. I know she does this willingly, but I feel I cannot allow her to do all she does without at least giving her £45 (which probably only covers the travelling expenses)."

And in paras. 13 and 14 of her witness statement, Mrs Pennock said:

"In October 2002, due to the claimant's deterioration in health and a period in hospital, I reduced my working week from full time to 30 hours over 4 days in order to spend more time with the claimant ….. This was only after discussion with the claimant who only agreed on the basis she would pay me, and I would charge her, to at least partly compensate me for my reduction in earnings and to cover motor expenses."

19. There is some support for the Council's policy in other documents. In August 2002, the Department of Health and the Department for Work and Pensions issued a document which was intended to give practice guidance to local authorities on how the ministerial guidance should be implemented. Local authorities were advised to take into account "the availability of voluntary help" when considering expenditure on basic garden maintenance, cleaning and domestic help. I agree with Mr Pennock that the guidance was contemplating help from voluntary agencies, and I note that this advice was not referred to in that part of the guidance covering expenditure on privately arranged care services. But if the availability of voluntary help is a factor which should be taken into account in respect of some expenditure, it shows that the rationale underlying the family member rule has some merit. Secondly, the Department of Health issued guidance to local authorities for determining eligibility for social care. Para. 44 of the guidance reads:

"The determination of eligibility in individual cases should take account of the support from carers, family members, friends and neighbours which individuals can access to help them meet presenting needs. If, for example, an individual cannot perform several personal care tasks, but can do so without difficulty with the help of a carer, and a carer is happy to sustain their caring role in this way, both currently and in the longer-term, then the individual should not be perceived as having needs calling for community care services."

It is true that this guidance was given in a different context from the present case: the guidance related to whether the care was needed, not how it was to be charged for. But there was nevertheless recognition of the fact that the care which family members provide voluntarily may well affect whether such care should be provided by the local authority.

20. There are, I think, other legitimate justifications for the family member rule. The prevention of fraudulent claims is one, and it would have been open to the Council to conclude that it is impracticable to investigate every case in which a family member claims to have received payment for the care provided to see whether the payment was really made or whether it would have been made but for the fact that expenditure on care reduces the disabled person's assessed income. Moreover, the family member rule avoids the need to distinguish between those family members who provide care without payment and those who charge for the care they provide. And the Council was entitled to take into account the possible effect of not having the family member rule at all: family members might be tempted to charge for the care which they provide, when it might not have occurred to them to do so. All these were factors which Mr Beckwith says informed the decision to adopt the family member rule. In para. 11 of his first witness statement, he said:

"It is my view that, if the request for [disability-related expenditure] for care provided by a family member is allowed in these circumstances, it could have a potentially damaging impact [on] the future implementation of the policy. It is likely that family members provide some form of care to many of our clients but without seeking payment. It is natural that if we were to allow such payments others may seek to have such taken into account. This might be done legitimately where care is already provided or falsely where it is not. It could therefore lead to an abuse of the policy and an inherent unfairness."

21. The reference in Mr Beckwith's witness statement to a carer being compensated for providing care through benefits payable to the carer is a reference to the carer's allowance payable under section 70 of the Social Security Contributions and Benefits Act 1992. That is an allowance paid to someone who cares for a severely disabled person, but only if they are related to each other. However, a disabled person who has no partner may only receive a severe disability premium if no-one is claiming a carer's allowance in respect of the care of that person: see reg. 1(1)(a)(iii) of the State Pension Credit Regulations 2002 (SI No. 1792/2002) In other words, the carer is paid for the care which is provided, either by the State by a carer's allowance payable to the carer or by the disabled person who uses the severe disability premium to pay the carer. Mr Pennock made the point that, since a carer may claim a carer's allowance when caring for a relative and that allowance will not be treated as part of the disabled person's income, the fact that the disabled person is receiving a severe disability premium which is treated as part of his income should not result in the cost of such care as the relative provides being ignored when determining the disabled person's expenditure on care.
22. That is an important point, but its impact is lessened by the strict eligibility requirements for the payment of a carer's allowance. The carer has to provide at least 35 hours care a week, and has to be earning £79.00 a week or less from other sources. Moreover, the carer remains entitled to a carer's allowance if he or she arranges for someone else to provide the care for the disabled person. But crucially the carer is not entitled to a carer's allowance where the person who he or she gets to provide the care is a close relative of the carer or the disabled person: see reg. 10(3) of, and para. 2 of schedule 3 to, the Social Security Benefit (Computation of Earnings) Regulations 1996 (SI No. 2745/1996). That rather suggests that the legislature treats the payment for care carried out by a close relative of the disabled person differently from the payment for care carried out by other people.
23. Mr Pennock also relied on the statement in para. 45 of the ministerial guidance that "a holistic view of the user's finances and personal needs" should be taken when determining the expenditure which a disabled person incurs in respect of his or her disability. I take that to mean that the local authority should look at the whole person, taking into account all their needs, including their social and psychiatric welfare, and not focus only on the basic activities of daily living. But that does not seem to me to add anything to the argument. The issue is not whether the care which Mrs Pennock provides is care which Mrs Stephenson needs. Given that the care which Mrs Pennock provides is care which Mrs Stephenson needs, the issue is whether the fact that the payment which Mrs Stephenson chooses to make for care which would have been provided without payment should entitle the Council to ignore the payment which Mrs Stephenson makes when determining what her expenditure on her disability really is.

The attack on the family member rule: unlawfulness

24. Apart from the attack on its rationality, the family member rule is also attacked on the ground that it is unlawful as failing to respect Mrs Stephenson's right to family life in breach of Art. 8(1) of the European Convention on Human Rights and as amounting to unlawful discrimination under Part III of the Race Relations Act 1976 ("the 1976 Act").
25. The alleged breach of Art. 8(1) is based on the proposition that the family member rule in effect denies the disabled person the choice of being cared for by a family member. I do not agree. The disabled person is not being prevented from being cared for by a family member. What he or she is being prevented from is having payment made to the family member treated as expenditure relating to his or her disability. If the Council is persuaded that the family member rule impacts unfairly in any particular case, it can treat the case as an exceptional one. Since care is usually provided by a family member voluntarily and is not usually charged for, what the disabled person is being denied is something which would be unusual. The right to respect for family life in Art. 8 is all about the preservation of family relationships and the maintenance of family life. The family member rule does not prevent those relationships from continuing to flourish, nor does it interfere with the maintenance of family life.
26. But even if Art. 8(1) is engaged, and the family member rule constitutes an interference with the right to respect for family life, a respectable argument could be mounted for saying that the interference is justified under Art. 8(2). Apart from the need to prevent crime, the economic well-being of the State could be said to justify the family member rule on the basis that if care which is ordinarily provided voluntarily without charge is charged for, the cost of that care should not be discharged out of public funds.
27. The argument that the family member rule is discriminatory is based on the exception to it in cases in which "cultural issues" are identified. Examples of cases in which "cultural issues" might warrant an exception to the family member rule include the case of a disabled person who has to have his or her food prepared by a family member, or who would be particularly uncomfortable about intimate care being provided by someone who is not a family member. It is said that these exceptions to the family member rule constitute indirect discrimination on the ground of racial origin, which is rendered unlawful by Part III of the 1976 Act, because proportionately fewer members of the indigenous population of the UK would come within the exception than persons of a different racial origin.
28. Mr Pennock disavowed any reliance on any provisions other than those in Part III of the 1976 Act. In these circumstances, section 35 of the 1976 Act is a complete answer to the point:

"Nothing in Parts II to IV shall render unlawful any act done in affording persons of a particular racial group access to facilities or services to meet the special needs of persons of that group in regard to their education, training or welfare, or any ancillary benefits."

In any event, the exception for cases in which cultural issues are identified is no more than a recognition that there will be some cases in which, for cultural reasons, care has to be provided by a family member. In such cases, to use the words of the letter of 26 March 2004, the care will be provided by the family member "from necessity ….. rather than by choice". If the exception for cases in which cultural issues are identified is treated merely as an example of those exceptional cases in which the care is provided by family members, no question of discrimination arises. If the exception is treated as a separate category of exceptional cases, the exception is justified on the basis of the need to distinguish between those cases in which the care is being provided voluntarily by a family member, and those cases in which the care has to be provided by a family member.

The equipment

29. There is another issue altogether to which this claim for judicial review relates. Mrs Stephenson purchased an electric reclining bed and chair, and an electrically operated bath lift. In her witness statement dated 2 July 2004, she said that she bought them "about two years ago" for approximately £1,800.00. In fact, a note on the relevant form completed by an officer of the Council shows her as having told the Council that the equipment cost £1,599.00, and that she had bought them in 2001. Despite that, the Council assessed her expenditure on the basis that she had spent £1,800.00 on new equipment. It assessed the equipment in accordance with the formula referred to in para. 48 of the ministerial guidance. It treated the equipment as having a lifespan of 10 years, and accordingly calculated Mrs Stephenson's weekly expenditure on that equipment as £3.46 (£1,800.00 divided by 10 divided by 52). Her weekly income for the purpose of determining what charge should be made for the services which the Council provided to her was therefore reduced by that sum per week. It is contended that that was wrong. The lifespan of the equipment was 5 years, and her weekly expenditure on the equipment should therefore have been assessed at £6.15 (£1,599.00 divided by 5 divided by 52).
30. The issue is whether the Council was entitled to treat the lifespan of the equipment as 10 years. No manufacturer's leaflet was submitted to the Council in respect of the assertion that the equipment had a lifespan of only 5 years. Indeed, the Council's evidence is that it refers to the suppliers of the equipment, the local Appliance Service, other local authorities and the National Association of Local Authorities in estimating the typical lifespan of particular items of equipment. The Council does not say that it did that in this case, but there is still no evidential basis for saying that the Council's estimate of a 10 year lifespan was irrational.
31. A second point was taken on Mrs Stephenson's behalf in paras. 39 and 40g. of the grounds for claiming judicial review. It was said that the Council failed to treat the cost of maintaining and repairing disability-related equipment as part of a disabled person's expenditure relating to his or her disability. It subsequently emerged that that contention was based on the fact that in February 2004 Mrs Stephenson had to pay £171.50 for the repair of the bath lift. That was not taken into account as part of her expenditure on disability-related equipment. However, Mr Pennock accepts that the Council did not know of that expenditure prior to the issue of these proceedings, and the allegation that the Council does not take such expenditure into account was withdrawn.
32. However, a new point emerged in para. 45 of Mr Pennock's skeleton argument. What the Council does is to treat the cost of repairs in the same way as it treats the capital cost of disability-related equipment, i.e. the Council amortises the cost of the repairs over a period representing the lifetime of the equipment, and when the disabled person's expenditure relating to his or her disability is calculated at the beginning of the next accounting year, the Council calculates the weekly expenditure over the period representing the lifetime of the equipment. The practice guidance says this about the repair of disability-related equipment:

"Current costs may be assumed on the basis of regular expenditure in the previous year."

So it is argued that what the Council should be doing is to assess the costs of repair for the coming year on the basis of the previous year's costs, and to adjust the figure up or down the next year based on the actual costs.

33. Although I cannot treat this argument as part of the claim for judicial review since no application was made to amend the grounds, I think that there is force in it. I do not think that the policy of amortising repair costs over the estimated lifetime of the equipment is an altogether rational one. It is highly questionable whether the Council can treat the repair of a particular item of equipment as a one-off cost in the same way as the purchase of the equipment is a one-off cost. And I rather doubt whether the Council can rationally defer treating the costs of repairs as disability-related expenditure until the next accounting period simply on the basis that it is better for the Council to see what the actual costs were, rather than to assume what the costs might be. That may result in some disabled persons being charged slightly less for home support care, but that can be clawed back in subsequent years. But it could also result in disabled persons being charged slightly more for home support care than they should be. It may be that the Council will have to look at these issues again if it is to avoid challenges to its calculations in a particular case.

Conclusion

34. For these reasons, this claim for judicial review must be dismissed. I do not want to put the parties to the expense of having to attend court when the judgment is handed down, and I leave it to them to see if they can agree costs. One of the things to be taken into account is that the Council's policy of permitting exceptions to the family member rule in cases other than those in which cultural issues are identified should have been spelled out in the Council's framework document, and its absence there (even though it was referred to in the letter of 26 March 2004) may have led those advising Mrs Stephenson into thinking that her case was stronger than it really was. And although I suspect that this litigation may have been driven by Mrs Pennock rather than Mrs Stephenson, the fact remains that Mrs Stephenson has very limited means. But if the parties cannot agree an appropriate order for costs within 14 days of the handing down of this judgment, they should refer the issue to me, and I will decide the appropriate order to make without a hearing on the basis of any representations which are made. If Mrs Stephenson wishes to apply for permission to appeal, her solicitors should notify my clerk of that within 7 days of the handing down of this judgment, and I will consider that question as well without a hearing.