Local Authority Agrees To Reconsider Financial Assessment After Lawyers’ Successfully Launch Legal Challenge

A council which wanted to deduct more than £2,000 a year from benefits paid to a man with Autism to contribute towards his care package has agreed to review its policies following a High Court legal challenge.

Michael Sherratt, 27, has Autism and learning difficulties and lives with mum Stephanie Sherratt, 54, who acts as his primary carer. Michael has a care plan and has been assessed by Bolton Council as having high levels of need for which he receives additional support, covered by direct payment and state benefits.

Prior to 2022 he was not required to make a financial contribution towards the cost of his care. However, following a financial assessment by the council in March 2022, Michael was required to make a contribution of £39.92 per week towards his care.

The council stated that this was because any disability related expenditure (DRE) had to be ‘relatable or attributable’ to his care plan. It argued travel costs were covered in his Personal Independence Payment (PIP) and items such as lunches for a personal assistant couldn’t be DRE, as he wasn’t responsible for providing these.

The family, from Westhoughton, Bolton, instructed specialist public law and human rights lawyers at Irwin Mitchell to challenge the decision, arguing such items could be counted as DRE.

Following an application for judicial review in the High Court the council accepted all the points presented by the family in the proceedings and will pay costs.

The council will now review Michael’s care plan and undertake a new financial assessment, applying the Care and Support Statutory Guidance lawfully to decide whether the claimed items are capable of being DRE. In a judgment which lawyers at Irwin Mitchell say could have significant implications for other families, the council will also review its policies, to ensure compatibility with the Care and Support Statutory Guidance.

In his judgment, Mr Justice Fordam said the council had “breached its basic public law duty to ask the legally correct question. The decision needed to be retaken lawfully.” Mr Justice Fordham also pointed out the council never entered a defence against the family’s claims.

Expert Opinion

“The news that the council has accepted the family’s points in respect of DRE isn’t just a victory for Steph and Michael, but for the wider community of people who care for adult family members with special needs.

“Michael has complex needs and without support provided by his family, support services and a personal assistant, he wouldn’t be able to live the normal life that’s key to his and his family’s wellbeing.

“We’re pleased the council has now recognised all the issues raised in respect of the financial assessment and DRE and have agreed now to review and reconsider their policies, given their decisions in this case went against both statutory guidance and their own.

“Many families rely heavily on these services and any failure to take DRE into account when assessing contributions to care can be financially devastating. This case is an important step in clarifying the duty councils have to recognise the flexibility enshrined in the statutory guidance and, in many cases, their own guidelines.” Gerard Devaney-Khodja, Public Law and Human Rights Lawyer

Michael’s mum Steph is the Founder and CEO of Breaking Barriers Northwest (https://www.breakingbarriersnw.com/about-breaking-barriers-charity.html ), a charity dedicated to supporting disabled children, young people and their families across the region.

She said: “Prior to March of 2022 our journey as a family in receipt of direct payments from adult social care had been seamless, which was a very welcome state of affairs given the complexity of living with a disabled adult.

“I didn’t anticipate the resistance to following the law and guidance surrounding DRE by Bolton Council to be as firm and unwavering as it was. Being ignored or stonewalled when speaking openly and frankly about the needs of my adult son felt unfair, unkind and as it turns out, unjust.

“As CEO of a charity with a reach of over 2,000 families it soon became apparent that my family aren’t alone in being refused DRE for items essential in the lives of our disabled adult children.

“This has never been about my son or my family alone, it has always been about challenging what I believed to be fundamentally wrong and trying to bring about changes that would be beneficial to all families in receipt of direct payments from adult social care.

“The needs of disabled adults should be looked at on an individual basis, using care and support plans as a starting point only. Those tasked with ‘using their discretion’ to determine DRE should take the time to speak to parents and understand what is needed and why in order to ensure their equality of opportunity and fair and supported access to the community and the things they enjoy.

“Caring for a disabled adult child is a wonderful, joyful, insightful but totally exhausting way of life. We have enough to deal with without being asked to make financial contributions to a properly assessed care and support package without lawful process being followed.

“Following this judicial review, I’m cautiously optimistic that change for the better will now happen.”

Irwin Mitchell instructed barrister Benjamin Tankel of 39 Essex Chambers to represent the family in the judicial review proceedings.

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