Treatment which is advantageous to a person with disability cannot be said to be discriminatory or unfavourable merely because it is thought it could have been more advantageous.
McCue (as guardian for Andrew McCue) v Glasgow City Council (Scotland)
 UKSC 1
Supreme Court of the UK
Lord Reed, P & SCJ; Lord Lloyd-Jones, Lord Sales, Lord Burrows & Lord Stephens, SCJJ
January 11, 2023
Reported by Faith Wanjiku and Betty Nkirote
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Human Rights Law-right to equality and freedom from discrimination-where the appellant’s disability resulted to him being provided with community care services by the respondent-what amount was the respondent entitled to charge the appellant for community care services provided to him due to his disability-whether the appellant had demonstrated to the respondent that his means were insufficient for it to be reasonably practicable for him to pay for the community care services provided to him by the respondent, such that it was not practicable for him to pay a charge calculated without deductions on the various items in dispute-what amounted to disability related expenditure in the context of section 87 of the Social Work(Scotland) Act 1968-Social Work (Scotland) Act, 1968 (1968 Act) sections 12, 12A, 87 and 87(1A)
Human Rights -freedom from discrimination- whether in failing to make greater deductions for disability related expenditure, the respondent breached its duty to make reasonable adjustments to take account of the appellant’s disability under section 20(3) of the Equality Act 2010-whether in failing to make greater deductions for disability related expenditure, the respondent discriminated unlawfully against the appellant on grounds of his disability within the meaning of section 15 of the Equality Act-Equality Act, 2010 sections 15 and 20(3)
The appellant brought the appeal as the guardian for her son Andrew (Mr McCue) before the Supreme Court of the UK. Mr McCue (the appellant) was 27 years old. He had Down’s Syndrome and lived with his parents. He was disabled within the meaning of section 6 of the Equality Act 2010 (Equality Act) and his disability resulted in him being provided with community care services by Glasgow City Council (the respondent)
The appellant contended that, in calculating the charge for the community care services, the respondent failed to make adequate deductions from the appellant’s income which was liable to be brought into the assessment of the charge that was to be levied. The appellant claimed that the respondent ought to have made greater deductions from the appellant’s assessable income in respect of certain disability related expenditure. Such assessment would have resulted to the charges levied by the respondent for the services provided to the appellant reduce, thereby leaving him with more of his income to spend as he chose.
The appellant claimed that in failing to make greater deductions for disability related expenditure, the respondent discriminated unlawfully against the appellant on grounds of his disability, within the meaning of section 15 of the Equality Act. It was the appellant’s contention that, in failing to make such greater deductions, the respondent breached its duty under section 20 of the Equality Act, which required it to make reasonable adjustments to take account of the appellant’s disability.
i. What amount was the respondent entitled to charge the appellant for community care services provided to him due to his disability?
ii. Whether the appellant had demonstrated to the respondent that his means were insufficient for it to be reasonably practicable for him to pay for the community care services provided to him by the respondent, such that it was not practicable for him to pay a charge calculated without deductions on the various items in dispute.
iii. What amounted to disability related expenditure in the context of section 87 of the Social Work (Scotland) Act 1968?
iv. Whether in failing to make greater deductions for disability related expenditure, the respondent breached its duty to make reasonable adjustments to take account of the appellant’s disability under section 20(3) of the Equality Act 2010.
v. Whether in failing to make greater deductions for disability related expenditure, the respondent discriminated unlawfully against the appellant on grounds of his disability within the meaning of section 15 of the Equality Act 2010.
Relevant provisions of the law
Social Work (Scotland) Act, 1968
Section 12-General social welfare duties of local authorities
“(1) It shall be the duty of every local authority to promote social welfare by making available advice, guidance and assistance on such a scale as may be appropriate for their area, and in that behalf to make arrangements and to provide or secure the provision of such facilities (including
the provision or arranging for the provision of residential and other establishments) as they may consider suitable and adequate, and such assistance may, subject to subsections (3) to (5) of this section, be given in kind or in cash to, or in respect of, any relevant person.
(2) A person is a relevant person for the purposes of this section if, not being less than eighteen years of age, he is in need requiring assistance in kind or, in exceptional circumstances constituting an emergency, in cash, where the giving of assistance in either form would avoid the local authority being caused greater expense in the giving of assistance in another form, or where probable aggravation of the person’s need would cause greater expense to the local authority on a later occasion.
Section 12A-Duty of local authority to assess needs
“(1) Subject to the provisions of this section, where it appears to a local authority that any person for whom they are under a duty or have a power to provide, or to secure the provision of, community care services may be in need of any such services, the authority—
(a) shall make an assessment of the needs of that person for those services; and
(b) shall then decide, having regard to the results of that assessment, and taking account—
(i) if an adult carer provides, or intends to provide, care for that person, of the care provided by that carer,
(ii) in so far as it is reasonable and practicable to do so, of the views of the person whose needs are being assessed (provided that there is a wish, or as the case may be a capacity, to express a view),
whether the needs of the person being assessed call for the provision of any such services.”
Section 87-Charges that may be made for services and accommodation
“(1) … a local authority providing a service under this Act … may recover such charge (if any) for it as they consider reasonable.
(1A) If a person—
(a) avails himself of a service provided under this Act …; 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 practicable for him to pay.
Equality Act, 2010
Section 15-Discrimination arising from disability
(1) A person (A) discriminates against a disabled person (B) if—
(a) A treats B unfavourably because of something arising in consequence of B’s disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.
Section 20-Duty to make adjustments
(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.
(2) The duty comprises the following three requirements.
(3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
Section 29-Provision of services etc
(1) A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.
(2) A service-provider (A) must not, in providing the service, discriminate against a person (B)—
(a) as to the terms on which A provides the service to B;
(b) by terminating the provision of the service to B;
(c) by subjecting B to any other detriment.
(3) A service-provider must not, in relation to the provision of the service, harass—
(a) a person requiring the service, or
(b) a person to whom the service-provider provides the service.
- Where a local authority provided services under the Social Work (Scotland) Act 1968 (1968 Act) by virtue of section 87(1) it had a discretion whether to charge the recipient for such services. It could recover such charge as it considered reasonable. Under that provision, it was left to the judgment of the local authority whether a charge was to be made and, if it was, what the reasonable amount to be charged would be. To make such an assessment, the local authority had to take into account the public funds available to it for paying for services provided to the individual and other persons under the 1968 Act and to meet other calls on its resources, and the income and capital of the individual subject to assessment. In making its assessment, the local authority was subject to the usual general obligations which arose under public law, and which included acting fairly and rationally, having regard to relevant considerations and ignoring irrelevant considerations.
- By virtue of section 87(1A) of the 1968 Act, the local authority was subject to a further specific constraint. If the individual subject to assessment satisfied the authority that his means, taking account of his income and any capital resources, were insufficient for it to be reasonably practicable for him to pay the amount which would otherwise be due, the authority could not charge more than it appeared to it that it was practicable for him to pay. According to that provision, it was the local authority which had the function of forming a judgment whether the individual’s means were insufficient to the extent that it was not practicable for the individual to pay for the services provided. The onus was on the individual to satisfy the local authority of that requirement. In forming the relevant evaluative judgment required, the local authority was subject to the usual general obligations which arose under public law.
- Although the phrase “disability related expenditure” was used in the Convention of Scottish Local Authorities (COSLA Guidance) the policy document and the correspondence between the parties, it ought to be emphasized that it was not a statutory term. Rather, it was a term used in the COSLA Guidance, the policy document and in the respondent’s letters to indicate when expenditures incurred by an individual were so unavoidably imposed on him as a result of his disability that the local authority which was to make the relevant assessments under section 87(1) and (1A) would judge that such expenditure ought to be regarded as one that reduced his available income and capital in the sense that, to that extent, it was not reasonably practicable for him to use the resources required to meet the expenditure to pay the local authority for the community care services provided to him under the 1968 Act.
- There was no limit imposed on the local authority’s power of assessment under section 87 of the 1968 Act. A local authority was entitled to have regard to the means of the individual subject to assessment howsoever it arose, when making the evaluative judgment required under that provision. The welfare benefits paid to the appellant left him, and his guardians with the discretion to choose how they were spent, and the respondent was entitled to take account of those benefits and that element of discretion when deciding, under section 87)(1) what charge was reasonable for the appellant to pay for the services provided to him and whether, under section 87(1A) it was practicable for him to pay that charge.
- In the context of applying section 87 of the 1968 Act, it was wrong to say that disability related expenditure had to be expenditure used to meet the needs of the individual as assessed by a local authority under sections 12 and 12A of the 1968 Act. On the contrary, expenditure could be related to disability in the relevant sense if it was used to meet other needs of the individual which arose by reason of his disability, so long as those needs were pressing that the relevant local authority assessed, or ought to have assessed, that expenditure to meet them had the effect that, to that extent, the individual’s means were reduced below what it would otherwise be practicable for him to pay as a charge for the services provided by the authority.
- The respondent had not adopted a mistaken approach to the concept of disability related expenditure. The deductions of £6.25 and £2.50 from the appellant’s available means were in respect of expenditure to meet needs different from and additional to those assessed by the respondent under sections 12 and 12A of the 1968 Act, in respect of which it provided the community care services set out in the support plan.
- With regard to the disputed items of disability related expenditure by the appellant, the respondent’s assessment under section 87 of the 1968 Act, was that they had not reduced his means in such a way that to the extent they had been incurred, it would not be practicable for him to pay the charge imposed by the respondent for the provision of community care services.
- The respondent provided community care services to a wide range of persons, some of whom were disabled and some were not. It was clear from the policy document that the respondent charged both disabled and non-disabled persons according to the same basic scheme as set out in the document and that it applied section 87 of the 1968 Act to disabled and non-disabled persons alike. In both cases, an individual subject to assessment could be subject to practically unavoidable financial pressures for a variety of reasons such as the need to heat their residence at a reasonable level or the need to carry out indispensable repairs at their own cost to make it weather proof. That meant that it was not reasonably practicable for such an individual to use part of their means required to meet such pressures in order to pay a charge to the local authority which provided them with community care services under the 1968 Act.
- The COSLA Guidance, which the respondent followed, and the policy document made it clear that in applying section 87(1A) in the case of disabled persons the respondent was willing to consider whether disability related expenditure ought to have been deducted on the same basis when calculating a disabled individual’s available means and what charge it was practicable for them to pay. That was an extension of the respondent’s general approach under section 87 in order to take account of an additional category of practically unavoidable costs which the disabled individual would have to bear, over and above which the non-disabled persons had to bear. That aspect of the respondent’s approach to the application of section 87 could not be regarded as unfavourable to disabled persons. On the contrary, it was favourable to them, since it allowed for a greater range of possible deductions to be made in calculating their available means when the respondent assessed the charge which it was practicable for them to pay.
- The appellant had no case that the respondent had failed properly to apply section 87 (1) and (1A) in accordance with their terms and in accordance with its usual general public law obligations. The respondent had followed the same approach in applying section 87 as it had adopted in relation to all persons in receipt of community care services provided by it, with appropriate modification in the appellant’s favour to take account of his additional practically unavoidable financial pressures to which he was subject by reason of his disability. The failure of the respondent to apply section 87 in a more generous way, beyond the favourable treatment for the appellant as a disabled person already built into its approach, did not constitute unfavourable treatment for the purposes of section 15(1)(a) of the Equality Act.
- Under section 20(3) of the Equality Act, it was necessary to identify a provision, criterion, or practice (PCP) of the respondent which bore upon the provision of community care services by it. If the respondent were subject to a statutory duty to act as it had done, its approach would not have been a PCP of its own, but something imposed on it by the law. However, since section 87 of the 1968 Act conferred a discretion on the respondent whether to charge the appellant for the provision of services and a power of evaluation as to how to calculate such a charge, it was possible for the respondent itself to adopt a PCP which was capable of falling within section 20(3) of the Equality Act.
- The respondent had adopted a practice whereby it considered charging any person to whom it provided community care services, whether they were disabled or not, for those services. Such a policy or practice did not put a disabled person at a disadvantage in comparison with non-disabled people, so it could not in itself found a claim of discrimination under section 20 of the Equality Act.
- The respondent also had a policy or practice to charge for community care services where it assessed that it was reasonable and practicable for the recipient to pay such a charge, in regard to the financial pressures to which he or she was subject. That was a policy or practice which did not, in itself, put a disabled person at a disadvantage in comparison with non-disabled people, so it likewise could not in itself found a claim of discrimination under section 20 of the Equality Act.
- The respondent had adopted a policy according to which items were rejected if they did not relate to disability, or if, while they related to disability, a person received a benefit to meet the cost in question, or if they represented discretionary spending and were not necessary to meet the disabled persons needs. Such practice did not put the appellant at a disadvantage because the practice only applied to disabled people. As a distinct practice, it did not allow for any comparison to be made with the persons who were not disabled, hence there was no scope for the application of section 20(3) of the Equality Act. One could say that the practice conferred an advantage on the disabled persons in comparison with non-disabled persons, was not a disadvantage.
Relevance to Kenyan jurisprudence
Article 27 of the Constitution of Kenya 2010, safeguards against all forms of discrimination. It forbids discrimination on any of the stated grounds including disability. It provides in this regard thus:
Article 27-Equality and freedom from discrimination
(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. (5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4) Thus, it is clear from the above provision that no person should directly or indirectly discriminate against another person on any of the grounds specified or contemplated therein.
In Peter K Waweru v Republic  eKLR, the court defined the term discrimination as follows: Discrimination means according different treatment to different persons attributable wholly or mainly to their descriptions by race, tribe, place of origin or residence or other local conviction, political opinions, colour, creed, or sex, whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description. Discrimination also means unfair treatment or denial of normal privileges to persons because of their race, age, sex …. a failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured.” From the above definition, it is clear that discrimination can be said to have occurred where a person is treated differently from other persons who are in similar positions on the basis of one of the prohibited grounds like race, sex disability etc or due to unfair practice and without any objective and reasonable justification.
Further, it follows that, where a person alleges discrimination on any of the specified or contemplated grounds under article 27 of the Constitution, the burden of proof lies on that person to establish that indeed there has been discrimination.
While addressing this issue, the Supreme Court in the case of Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others  eKLR observed as follows: Section 108 of the Evidence Act provides that, “the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side;” and section 109 of the Act declares that, “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” In Gichuru v Package Insurance Brokers Ltd  eKLR where the appellant alleged unlawful discrimination by the respondent, on grounds of his health status and disability, the Supreme Court found that the appellant had been indirectly discriminated upon by the respondent in the following terms: However, in the circumstances, we are inclined to respectfully agree with the trial court’s finding that the Respondent exhibited indirect discrimination towards the appellant. The issue of gross incompetence was an afterthought. As such, we reiterate that the respondent’s action to dismiss the appellant was extremely harsh when in fact they had not reasonably demonstrated what measures they took to accommodate the appellant’s condition. On the other hand, courts have on several occasions held that not all distinctions resulting in differential treatment can properly be said to violate equality rights as envisaged under the Constitution. In Federation Of Women Lawyers Fida Kenya & 5 others v Attorney General and Another (2011) eKLR, the court held in this regard thus: In our view, mere differentiation or unequality of treatment does not per se amount to discrimination within the prohibition of the equal protection clause. To attract the operation of the clause, it is necessary to show that the selection or differentiation is unreasonable or arbitrary, that it does not rest on any basis having regard to the objective the legislature had in view or which the Constitution had in view. An equal protection is not violated if the exception which is made is required to be made by some other provisions of the Constitution. This case is therefore relevant to the Kenyan jurisprudence as it enlarges the jurisprudence on enforcement of the right to equality and freedom from discrimination, particularly in respect to persons with disabilities. It makes it clear that treatment which is advantageous cannot be said to be discriminatory or unfavourable merely because it is thought it could have been more advantageous.