Follett Stock wins against Cornwall Council in the Court of Appeal

COURT OF APPEAL CONFIRMS CORNWALL COUNCIL’S CHARGING POLICY UNLAWFUL

The Court of Appeal’s decision in a case against Cornwall Council has opened the door for up to 200 learning disabled adults living in Cornwall to be refunded payments towards the cost of care.

On Tuesday 9 February 2010, the Court of Appeal dismissed the Council’s appeal against a High Court order (made in March 2009) – in that Order the Court determined that in deciding to charge ‘B’ £68.50 per week out of his benefit income, the Council had acted unlawfully. 

The Council will also have to pay the costs of the litigation, which are expected to be as high as £100,000.

In his judgment given in the Court of Appeal, Lord Justice Waller stated:

“This was a decision to make a charge which was fundamentally flawed.  The authority did, it seems, offer an apology for the way in which they acted but did not offer to start again in order to put matters right…

B, whose identity is protected by a court order, is a middle aged, learning disabled man who lives in Cornwall.  In May 2008 the Council calculated that due to his low income and disability needs, B would not have to contribute towards the cost of the care services that the Council provides to support him. 

However, unknown to B’s parents, in July 2008 the Council reassessed B and this time concluded that he should pay £68.50 each week from his income, which is made up of Income Support and disability benefits.  Having decided that the Council had acted unlawfully, the High Court Judge quashed that decision.  When doing so, the Judge indicated that he regarded parts of the Council’s charging policy to be unlawful and criticised the Council for having undertaken the charge assessment without first having assessed B’s care needs properly.

B is one of almost 200 learning disabled adults living in Cornwall who, up until 2008, were cared for by the Cornwall Partnership NHS Trust.  In the aftermath of the Healthcare Commission report into the Trust’s services, which criticised both the Trust and the Council, the Council took over responsibility for ensuring that B and the 200 others are cared for properly.  Unlike the NHS Trust, the Council has the power to charge for some care services.  However, in March last year a High Court judge questioned whether in exercising that power the Council had acted lawfully, concluding “I am quite satisfied that they did not.”

After judgment was given in the Court of Appeal today, Follett Stock’s Richard Scrase said:

            “This is another very significant decision for B, his parents, the 200 other people whose circumstances are similar to B’s and, therefore, a very significant decision for the Council.  At the beginning of the hearing before the Court of Appeal, the Council indicated that the case is of significance to the Council because if it loses, which has now occurred twice, the Council would have to consider its position in relation to all the other cases as well.   In this respect, my view now is the same as it was in March last year.  There is no alternative for the Council other than to refund all money that it has collected from this group of service users since   October 2008, confirm an approved new charging policy, undertake proper lawful needs assessments of all 200 individuals and then re-calculate what, if any, charges should be paid.”

Among the Council’s shortcomings was its failure to engage with B’s parents when re-assessing B’s contribution and applying a policy which was too restrictive.  The effect of that restrictive policy was to favour the Council in that it enabled it to collect more money than it would otherwise have collected.

For further information please contact Richard Scrase.