The Appellant in R (YVR) v BIRMINGHAM CITY COUNCIL (2025) EWCA Civ 393 is a severely disabled young man who will never be able to work and who is dependent on state benefits. His eligible social care needs have been assessed and are met by Birmingham City Council, which charges him for the provision of those services, as it is entitled but not obliged to do by the applicable legislation, Section 14 of the Care Act 2014 and Regulations. The issue on the appeal was whether the Council’s charging policy was adopted in breach of the PSED on the ground that the Council failed to have “due regard” to the need to eliminate discrimination and to advance equality of opportunity for severely disabled persons such as the Appellant. The Judge held that there was no breach of the PSED. The Appeal to the Court of Appeal failed.
The Court of Appeal referred to the Secretary of State’s Guidance on charging (paras 17-21); the Judgment in R (SH) v Norfolk County Council (2020) EWHC 3436 (Admin), (2021) PTSR 969 (paras 23-25 and paras 38 and 65/66); the Council’s review of its charging policy (paras 26-28); and the Council’s unprecedented financial crisis and the equivalent of a declaration of bankruptcy (paras 29-31 and 60/61). From para 39 Males LJ addressed the PSED, contained in Section 149 of the Equality Act 2010, which does not require any particular outcome, but is a duty to have “due regard” to the specified needs.
Males LJ concluded (para 42) that the PSED did apply. The decision to reissue the charging policy without seeking to eliminate the discrimination identified by the Norfolk decision was an exercise of the Council’s functions. Therefore the PSED applied, consideration was required of the impact of the Council’s charging policy on severely disabled persons and (para 47) the duty is non-delegable, so that it is the decision-maker personally who must have regard to the needs identified in Section 149. Who that may be (paras 50-54) is a matter for the Council’s statutory Constitution. It is only when the decision-maker has been identified that the relevance of the PSED being non-delegable arises. In this case the decision-maker acted in accordance with the PSED.