C, R (on the application of) v North Tyneside Council [2012] EWHC 2222 (Admin)

Case No CO/11104/2011[2012] EWHC 2222 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN LEEDS
Venue Leeds Combined Court,, 1 Oxford Row, Leeds, LS1 3BGDate 01/08/2012
Before
MR JUSTICE HICKINBOTTOM
Between
THE QUEENClaimantNORTH TYNESIDE COUNCILDefendant
Stephen Cragg (instructed by Ben Hoare Bell) for ClaimantPaul Spencer (instructed by Vivienne Geary, Head of Legal Governance and Commercial Services, North Tyneside Council) for DefendantHearing Hearing date: 18 July 2012
Judgment

Introduction

[1]The Claimant, C, challenges the decision of the Defendant social services authority (“the Council”), made on 17 August 2011, to charge her £19.51 per week for community care services. She is an adult and lives at home with her parents; and, in respect of the calculation of that charge, she particularly complains of the Council’s policy of not making any allowance for housing-related costs in those circumstances.

The Legal Background

[2]Section 29(1) of the National Assistance Act 1948 and section 2(1) of the Chronically Sick and Disabled Persons Act 1970 impose a duty upon social services authorities to make arrangements for the welfare of adults in their area who are “substantially and permanently handicapped by illness, injury or congenital deformity…”, including the provision of meals and holidays, practical assistance in the home, and assistance with recreational activities and education outside the home. By section 47 of the National Health Service and Community Care Act 1990, where an adult ordinarily resident in the area of a social services authority may need such community care services, that authority is required to assess that person’s needs for such services; and then decide whether those needs call for the provision of services by them and, if so, what services are required.[3]Any requirement to provide such services is subject to three particular statutory provisions, relevant to this claim.[4]First, by section 57 of the Health and Social Care Act 2001, an authority may procure the community care services required of them by making direct payments to the user.[5]However, second, section 17 of the Health and Social Services and Social Security Adjudications Act 1983 (“the 1983 Act”) gives a local authority power to charge for services it provides, in the following terms:
“(1) Subject to sub-section (3) below, an authority providing a service to which this section applies may recover such charge (if any) for it as they consider reasonable. (2) This section applies to services provided under… (a) section 29 of the National Assistance Act 1948 …. (3) 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 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 reasonably practicable for him to pay ….”
In short, an authority has a power to levy a charge for services it provides, so long as the service user has means to pay and the charge is reasonable. (a) section 29 of the National Assistance Act 1948 …. (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 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 reasonably practicable for him to pay ….”[6]Third, section 7(1) of the Local Authority Social Services Act 1970 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”
. This provision is in mandatory terms: an authority is required to comply with guidance issued by the Secretary of State in exercising powers under any relevant enactment. For the purposes of section 7(1), the 1983 Act is a “relevant enactment”.[7]Under that provision, in September 2003 the Secretary of State issued guidance for the exercise of authorities’ charging powers under the 1983 Act, namely “Fairer Charging Policies for Home Care and Other Non-Residential Social Services: Guidance for Councils with Social Services Responsibilities” (“the 2003 guidance”).[8]The following points relating to the 2003 guidance are worthy of note. i) The guidance stresses the overall objectives of social care “to promote the independence and social inclusion of service users” and the need to ensure that they are “not undermined by poorly designed charging policies” (paragraph 3); and the need to “[take] 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” (paragraph 45). ii) The exclusive focus of the assessment exercise is on the financial position of the individual community care service user. Paragraph 62 says:
“Section 17 of [the 1983 Act] envisages that councils will have regard only to an individual user’s means in assessing ability to pay a charge.”
Of course, (i) if informal carers such as parents spend money on behalf of the user, then that can be treated as expenditure of the user himself or herself (see paragraph 84); (ii) in making an assessment in respect of services to carers under the Carers and Disabled Children Act 2000, the position may be different – in that assessment the financial position of the carers may be relevant (paragraphs 81-5); and partners are subject to different rules and considerations, which are not relevant to this claim. But otherwise, in assessing any charge for services to a community service user under section 17 of the 1983 Act, the financial position of informal carers is irrelevant. iii) In respect of housing costs, paragraph 21 of the guidance states:
“Income should be assessed net of any Income Tax and National Insurance contributions payable and net of housing costs, Council Tax. Housing costs and Council Tax should be assessed net of any Housing Benefit or Council Tax Benefit payable…. Some councils will wish to consider taking account of other costs such as water rates or charges and home insurance.”
I shall return to that guidance when I consider the grounds of challenge (see paragraphs 26 and following below). iv) Paragraph 50 states:
“Evidence of actual expenditure may be requested, at the council’s discretion. Where receipts have been kept, a council may request that this is done for future expenditure. It is legitimate for councils to verify that items claimed have actually been purchased, particularly for unusual items or heavy expenditure.”
That emphasises the need for expenditure, to be included as a disregard against income, to be actual and not merely notional. v) Paragraph 20 provides that the charge assessment will need to ensure that:
“… any charges levied on users… will not reduce the user’s income below basic levels of Income Support… plus 25%”
The relevant basic level of Income Support (now Employment and Support Allowance, “ESA”) is referred to as “the applicable amount”, and the additional 25% of the applicable amount as “the buffer”. The purpose of the buffer is that it “provides an additional safeguard to prevent users’ independence of living from being undermined by charging policies” (paragraph 15).[9]Additional ministerial guidance was issued by the Secretary of State in 2009 (“Fairer Contributions Guidance: Calculating an Individual’s Contribution to their Personal Budget”), which, as its long title suggests, is focused on the upfront allocation of resources to individuals eligible for support. That guidance was revised in November 2010.[10]Further to the guidance from the Secretary of State, the Council has issued its own guidance document, “Adult Social Care: Fairer Contributions Policy for Non-Residential Care Services”. The principles underlying that guidance are set out at the beginning of the document, and of course reflect the ministerial guidance. They include: i) Individuals will not pay more than they can reasonably afford to pay, following a Fairer Charging Assessment in line with the 2003 Guidance. ii) The required contribution will take account of any additional costs that an individual faces as a result of his disability, through undertaking an individual disability disregard assessment. iii) Charges will not be made that would reduce an individual’s income below the basic level of ESA plus a 25% the buffer.[11]In practice, in respect of any individual, the contribution to the charges for an individual is assessed in the following way: i) The individual’s capital is assessed. However, in C’s case, her capital is irrelevant, as it is too low to trigger any possible contribution. ii) The individual’s income is assessed, on the basis of details produced by the individual at the time of the financial assessment calculation. Income includes all money received on a regular basis, including benefits. iii) Against that income, there are various allowances or disregards, including : a) in all cases, an amount in the sum of the applicable amount plus buffer, which is intended to cover “ordinary living expenses”; b) housing costs and council tax; c) in appropriate cases, mobility allowance in full, and a proportion of various other allowances (e.g. attendance allowance); and d) Disability Related Expenditures, i.e. additional costs identified to be related to disability, following a Disability Disregard Assessment (“DREs”). iv) If there is income remaining after deducting those disregards, that sum is available to make a contribution towards the costs of the service charges. If the available sum is more than those costs, the amount of the costs is levied. If less, then the whole of that sum is taken. It is a principle of the Council’s own guidance that each individual who is assessed as being able to contribute towards the cost of their care package must pay their assessed contribution.[12]Further explanation of DREs is required. As their name suggests, these are items of additional expenditure related to the individual’s disability. As paragraph 44 of the 2003 guidance explains:
“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.”
[13]Because they are necessarily assessed by reference to an individual’s disabilities, it is impossible to define or give a comprehensive list of DREs. However, paragraph 46 of the 2003 guidance lists DREs which “councils should include”; and authorities are otherwise left to develop local policies for assessing DREs, consistent with the statutory guidance.[14]Appendix A to the Council’s local guidance lists the DREs which the Council will disregard from income. By way of example, a weekly sum of £3.15 is disregarded “where incontinence is identified or other illness that may cause additional needs for laundry in excess of normal needs”. That example is typical: the disregards allowed are in respect of expenditure that is in excess of normal expenditure, by virtue of the individual’s disability. As I have indicated, the list is necessarily not comprehensive; and, where a service user is able to show that he or she incurs additional expenditure as a result of disability then that expenditure will be included as a disregard in respect of available income.[15]Included in Appendix A, and of particular relevance to this claim, are the following: Item Weekly Allowance Notes Mortgage/Rent Actual amount Actual amount less any Income Support/Pension Credit for mortgage or Housing Benefits for rent Council Tax Actual amount Actual amount less Council Tax Benefit, exemptions, disregards, etc Of course, it is possible that additional housing costs may be incurred as a result of an individual’s disability, which may necessitate particular accommodation requirements. However, the disregard identified is not restricted to such additional costs: where a service user is liable for mortgage, rent and/or council tax payments, in the calculation of income available for the purposes of charging for community care services, then the amount of such payments (net of housing benefit and council tax benefit payments received) is allowable as a disregard against total income. That is confirmed in the statement of Ms Sandra Lillford (the Council’s Manager of Financial Services in Adult Social Care) dated 23 July 2012, at paragraph 21; and is in line with paragraph 21 of the 2003 guidance (quoted at paragraph 8(iii) above). Those allowances are made, not because they are additional costs incurred as a result of the service user’s disability, but because in principle allowances are made for basic living costs and, whilst ESA rates (for which a specific allowance of made) generally cover ordinary living expenses, they do not cover housing costs such as mortgage payments, rent and council tax. I shall return to these allowances, which are at the heart of this claim (see paragraphs 26 and following below).

The Factual Background

[16]C was born on 30 November 1992. She has Downs Syndrome and a moderate learning disability, a condition which has a number of consequences. For example, her speech is basic, and she cannot easily converse. She requires help with her dressing and personal hygiene, and she is prone to incontinence from time to time. She feels the cold significantly. She is independently mobile, but can only walk slowly. She has little sense of the risks posed by road traffic.[17]C lives with her father, mother and two siblings, in a semi-detached house owned by her parents, whom are both employed. Until last week, she attended a school for children with special needs. There are currently discussions taking place as to whether C will move to another educational establishment, perhaps spending only weekends at home; or whether she will continue to live at home.[18]When C reached 18 years old, her parents approached the Council, believing her to have adult community care needs. In April 2011, her needs were duly assessed, and a support plan prepared. The assessment indicated that she would benefit from one-to-one outreach worker support, to enable her to access social and leisure opportunities independent of her family. It was agreed that, in lieu of the provision of services, C would receive direct payments, to fund an outreach worker for three hours per week each week and ten working days of eight hours each to support her during college breaks.[19]On 17 June 2011, the Council undertook a financial assessment of C, to assess the contribution if any C would make to the costs of providing those services to her, in line with its policy for charging for community care services. In that form, under the heading, “Main residence”, was inserted, “Lives with parents”. Under “Expenditure Allowance”, a “No” response was given to all of the following: mortgage, rent, Council Tax, service charges and water rates. Under “Other”, was inserted, “No board”. C’s father signed the assessment form confirming the document was a full record.[20]C’s weekly income was £182.75, comprising ESA, and both care and mobility components of Disability Living Allowance (“DLA”). The applicable amount plus buffer for an adult to the age of 24 is £102.88; but the Council enhance that sum for all 18-24 year olds, to the higher level applicable to those aged 25 and over (i.e. £120.44). In addition, she was assessed as having two further disregards: £19.55 for her mobility DLA, and £20.00 allowance allowed by the Council for all adults below retirement age to encourage and enable social activities to be undertaken. With total disregards of £159.99, the sum left from the income was £22.76. The Council notified C of its decision to levy that weekly charge on 22 June 2011. In July 2011, the calculation was redone, to include as a further disregard, £3.25 for laundry, reducing the weekly contribution to £19.51, backdated to 17 June 2011.[21]However, in the meantime, C’s parents had spoken to another carer, with whom a child lived to whom the Council paid for community care services on the basis of a contribution; and, in that person’s assessment, a discrete disregard had been made for housing.[22]C’s parents therefore notified the Council that they proposed to charge C £25 for board and £40 for lodging each week. In the words of C’s mother (statement dated 16 November 2011, at paragraphs 10 and 12): “We consider this to be a reasonable contribution to the costs of running the house, bearing in mind our financial situation and that of [C]…. [W]e do not consider it is right that we have to absorb all of [C’s] housing costs simply because she is disabled. If she were not disabled we would certainly be charging her for board and lodging. We think that it is important that she makes a contribution”.[23]Meetings were held on 24 June and 7 July 2011, but the Council refused to allow any disregard for housing costs. At the latter meeting, it was made clear to C’s parents that board and lodging were covered in the applicable amount and buffer, and any further allowance or disregard “could not be allowed” in respect of it (the statement of Ms Sandra Lillford dated 14 February 2012, at paragraph 19).[24]The contribution of £19.51 was confirmed by the Council in a letter of 17 August 2011. It is that decision which C now challenges.

Grounds of Challenge

[25]The grounds of challenge have evolved over time, but, by now, they are effectively limited to a challenge to the Council’s policy of never considering giving an allowance to community care service users who live with a parent or parents where those parents are not entitled to housing benefit, on two grounds, one broad and one narrow.

The Broad Ground

[26]The broad ground was put thus. For the calculation of charges for community care services, paragraph 21 of the 2003 guidance requires available income to be assessed net of housing costs and council tax. Appendix A of the Council’s local guidance limits the disregard to “mortgage/rent” and council tax, and in any event the Council does so limit the disregard in practice. Where a community service user is living with parents, the Council will not in any case make any allowance for accommodation costs. It is submitted by the Council that certain “board and lodging” costs are included in the basic level of ESA (for which a disregard is already made), and in any event it is reasonable for housing costs to be excluded from the disregards when the calculation of community service charges is made.[27]In exercising its discretion as to charging, Mr Cragg for the Claimant conceded that the Council was not bound to make a disregard in every case where a disabled adult lived with parents. However, he submitted that an authority is required at least to consider making an allowance in those circumstances, whether in respect of(i) the use of the accommodation, or(ii) a contribution towards the running costs of the house, including council tax. The Council has acted unlawfully in adopting a rule under which a disregard is never made for housing costs, in those circumstances. Such an inflexible policy is an unlawful fetter of the Council’s discretion to levy charges on community care service users.[28]In support, Mr Cragg relied upon the following extract from “Community Care and the Law”, L Clements & P Thompson, 5th Edition (2011), at paragraph 10.37:
“[Paragraph 21 of the 2003] guidance explains that income should be assessed as net of housing costs less any housing benefit or council tax benefit. It adds that councils might wish to consider other costs such as home insurance and water charges. Thus even in a fairly straightforward case of a home owner without a mortgage, variations can exist between authorities. The [2003] guidance [is] silent on the position of housing costs where service users are living with their families. Most often this is where disabled adults live with their parents, or older people with adult children. Practice appears to vary as to whether any housing costs are allowed for either a contribution towards council tax or rent. If the family are charging for housing costs it would be unreasonable for a local authority not to allow these, given that housing costs are always considered to be a priority in any debt situation. On the basis that charges should be designed so that they do not undermine the independence and social inclusion of service users, it is arguable the amount allowed for rent and other housing costs in such cases should be set at a level based on what the person would pay for equivalent accommodation on a shared basis if it did not happen to be owned or rented by the person’s family, and his or her proportion of the Council Tax. Clearly there is no duty on families to provide support in such cases – the ‘liable family’ rule (which required families to support disabled adult members) was abolished by the National Assistance Act 1948 s1. Even if the family does not charge a specific rent it is arguable that at the very least local authorities should consider making an allowance based on the non-dependent deduction for housing and council tax benefit, in recognition of the fact that adults are expected to contribute towards their housing costs. As a general principle, local authorities should not rely on relatives (who are often the carers) to subsidise service users further, by not leaving the user enough money to make a contribution to household expenses.”
[29]That extract refers to how individuals are dealt with under the housing benefit and council tax benefit provisions – and Mr Cragg specifically relied upon those provisions – and therefore some consideration of those schemes is required. These are deep regulatory waters, in respect of which both parties lodged further evidence and submissions after the hearing, for which I am grateful.[30]Housing benefit and council tax benefit are the subject of parallel schemes. Unless there is a material difference between them, I shall refer only to the former, on the basis that the latter is identical in substance.[31]Housing benefit is payable to those who rent accommodation where the aggregate household income is very low. The eligible housing costs covered by the benefit comprise the rent (regulations 11 and 12 of The Housing Benefit Regulation 2006 (SI 2006 No 213)). C’s parents own their house, and hence do not pay rent; but, in any event, the income of the household is too high for the benefit to be payable.[32]Where a housing benefit claimant is entitled to the benefit, then his housing benefit will be reduced if a “non-dependant” is living with him (regulation 74). The definition of “non-dependant” excludes “any member of the claimant’s family” (regulation 3(1)(a)), but, so far as material to this claim, that is restricted to a partner or minor children (regulation 2, and section 137(1) of the Social Security Contribution Act 1992). The definition also excludes “a person who jointly occupies the claimant’s dwelling and is either a co-owner of that dwelling with the claimant… or is liable with the claimant… to make payments in respect of his occupation of the dwelling (regulation 3(1)(d)), and “any person who is liable to make payments on a commercial basis to the claimant… in respect of the occupation of the building (regulation 3(1)(e)(i)). However, in each case, there are exceptions to those exceptions, when a person is deemed not to be liable for such payments (and hence they fall back within the definition of “non-dependants” for whom the reduction is made), including where the “agreement pursuant to which he occupies the dwelling is not on a commercial basis” and where “his liability under the agreement is to a person who also resides in the dwelling and who is a close relative of [the claimant]” (regulations 3(3) and 9(1)(a) and (b)). Therefore, if C’s parents were eligible for housing benefits, their benefit would be reduced by a non-dependant reduction in respect of C.[33]The amount of the reduction for a person aged 18 or over and not in remunerative work is £11.45 (if rent is payable over 52 weeks) in respect of housing benefit, and £3.45 in respect of council tax benefit.[34]Mr Cragg conceded that the costs proposed to be charged to C by her parents for “board” were properly not allowed as a reduction from her income in the charges calculation – because they are not housing costs at all, and are included within the ESA basic level rate for which an allowance is already made. He also conceded that parents or other informal carers could not simply charge what they liked for lodging, and the Council were not bound to allow the whole of the £40 proposed for “lodgings” by C’s parents. However, he submitted that the amounts of the non-dependant reductions represented a contribution by the non-dependant to his housing costs and council tax respectively, and a contribution at a level with some sanction by the housing benefit regulatory scheme. Therefore, they were at least a good starting point for any authority considering the level of allowance that ought to be made against income in respect of the calculation of charges for community services. He suggested that, if such additional allowances were made against income in the community care service charge calculation, someone in C’s position could have no complaint.[35]However, in my judgment, that analysis is fundamentally flawed. The deduction from housing benefit and council tax benefit is made on the basis that the non-dependant is in a position to contribute, to the extent of the deduction, from his own income. Where the non-dependant is on basic level ESA, effectively his only income, then the deductions of £11.45 and £3.45 respectively are made on the basis that it reasonable to expect the non-dependant to contribute to those housing costs from his ESA. Given that that scheme has Parliamentary approval – the Housing Benefit Regulation 2006 (SI 2006 No 213) and the Council Tax Benefit Regulation 2008 (SI 2008 No 215) having been made by the Secretary of State under powers conferred on him by various Social Security Acts – an authority cannot be unreasonable in expecting such a person, when in the situation of C, to make an exactly similar contribution to his or her housing costs from his or her ESA income. Consequently, the non-dependant reductions in housing benefit and council tax benefit by analogy here support the Council’s case, not that of the Claimant.[36]Without the benefit of the housing benefit and council tax benefit schemes, there might have been room for argument as to whether the basic level of ESA included an element for “board and lodging”; but, given the manner in which non-dependant reductions are treated, it is clear that it does. It contains an element, regarded as sufficient by that scheme where there is no liability on an individual to pay mortgage, rent or council tax to a third party.[37]For those reasons, on Mr Cragg’s broad ground, I essentially favour the submissions of the Council. That ground fails.

The Narrow Ground

[38]However, that leads me to Mr Cragg’s second, narrower ground, developed particularly in his submissions of 25 July 2012 made in response to the Council’s evidence lodged on 23 July 2012.[39]In paragraph 32 of Ms Lillford’s statement dated 23 July 2012, she sets out a number of anonymised case studies to show that “[the Council] consistently consider each case on its own merits, instead of applying predetermined rules… [including] examples whereby we have taken into account matters which aren’t considered in the guidance”.[40]For example, the case of Miss G:
“Miss G is a young lady who lives with her parents in a privately owned house where the mortgage liability is in the names of her mother, father and herself jointly. Miss G’s liability towards mortgage payments is £15.66 per week. She also has a liability towards building and maintenance insurance of £7.27 per week. These are both allowed as additional housing costs. Miss G’s contribution towards her services has been assessed as nil”
. That is an example of where the service user herself has direct obligations to external parties for mortgage payments etc, which the Council allow against income for the purposes of the calculation of charges. In this claim, of course, there is no evidence that C has any such direct liabilities: indeed, the evidence is that she has none.[41]Mr Cragg relied upon another of the case studies, that of Mr C:
“Mr C is a 43 year old single man who lives with his brother in Council rented accommodation. The tenancy is in the name of his brother. He has a learning disability and limited mobility. His brother is in receipt of full benefit for housing and council tax purposes. Mr C’s brother has a non-dependent deduction of £21.06 from his housing benefit in respect of his brother. An additional allowance therefore of this amount is agreed in Mr C’s financial assessment towards his contribution for household costs….”
(emphasis added).[42]Despite Ms Lillford’s introduction to the case studies quoted above (paragraph 39) which suggests that in some of the case studies specific circumstances of an individual case have led the Council to a different conclusion on charges, given the emphasised word, it appears that, in calculating charges, the Council have a policy of making an allowance against income in the sum of the relevant non-dependant deduction where the service user is living with parents or other close relatives who are themselves in receipt of housing benefit and council tax benefit. In any event, it is clear that the Council’s policy is at least to consider whether an allowance should be made in those circumstances; which they do not where the relatives are not in receipt of that benefit. Mr Cragg submitted that, in that regard, it is irrational to have a policy that distinguishes between users who are living with parents or close relatives who are on housing benefit and those who are not.[43]I agree. The rationale for not considering such an allowance when the parents or other informal carers are not on housing benefit is that the service user’s basic level ESA (for which allowance is already made) includes a sufficient element for board and lodging, such that it is reasonable to expect them to make any contribution to their relatives out of that income. However, that reasoning equally applies to circumstances in which the user’s relatives are on benefit. Indeed, the non-dependant reduction is of course based upon those very circumstances.[44]The Council has not suggested any reason for such a distinction in treatment; the only rationale appears to be that the parents in the former case (not on housing benefit) are, probably, better off financially as those in the latter case (on housing benefit) – but that may not be so in every case, and, vitally, the charges calculation is required to focus exclusively on the financial circumstances of the user, not her family or household (see paragraph 8(ii) above). A distinction based on such a criterion would therefore be directly contrary to the terms of the 2003 guidance themselves.[45]As I have indicated, it appears that it is the Council’s policy to allow a disregard against income in the sum of the non-dependant reduction in housing benefit and council tax benefit. However, I stress that it is sufficient for the distinction drawn to be irrational in legal terms for the Council to have a policy under which it considers making an allowance for housing costs where the informal carer of a service user is subject to non-dependant deductions for that user, but has an inflexible rule that such an allowance is not considered in circumstances in which the relevant carer is not entitled to housing benefit, unless there is a legal justification for such a distinction. In this case, there is no evidence that any justification for such a distinction has ever been considered by the Council, nor any evidence or suggestion that such a distinction is in fact justified.

Conclusion

[46]For the reasons I have given, in my judgment, a social services authority is entitled to assume that, in the ordinary case, no specific allowance or disregard need be made in relation to housing costs for community care service users who live with parents, other close relatives or other informal carers, where the user has no legal obligation to a third party to pay mortgage, rent or council tax. An element of basic rate ESA covers household expenditure, and there is a sufficient element within that rate for relevant “housing costs”. The same will be true a fortiori if the service user in fact has income over basic rate ESA, e.g. earned income.[47]Of course, there may be exceptional circumstances in relation to a specific user, which may require the authority to consider an additional allowance or disregard, e.g. if the user, by virtue of his or her disability, has additional housing needs. There are no such circumstances in this case.[48]However, I find that the Council’s policy with regard to service users who live with their parents or other informal carers to be legally flawed, by distinguishing between users who live with carers who are on housing benefit, and those who live with carers who are not. No reason has been put forward for such a distinction, which is, on its face, legally irrational.[49]For those reasons, I allow the application, and quash the decision of 17 August 2011 based on that policy.[50]For the sake of completeness, I should briefly refer to the other grounds referred to in the Claimant’s written grounds, most of which are reflected in the two grounds dealt with above. I understood Mr Cragg no longer to pursue any of them as discrete grounds. In my view, he was right not to do so. Insofar as they were not formally abandoned, I confirm that I have considered them, and do not find any to be good.[51]In terms of further relief, having quashed the decision, as the Claimant through Mr Cragg accepted, I can only refer the matter back to the Council, who will need to reconsider its policy in the light of this judgment, and make a new decision in relation to its charge to C accordingly. Whilst that new decision will of course be a matter entirely for the Council, it will be only too apparent to the Claimant from this judgment that she should not be unduly optimistic that she will, as a result of that new decision, obtain a higher level of disregards from her income in relation to her housing costs than were allowed in the decision which I have quashed.

Costs

[52]I have considered the parties’ written submissions on costs.[53]Although the Claimant succeeded in quashing the Council’s decision she challenged, the ground upon which she succeeded was not raised before the substantive hearing, and was not developed until the Council had submitted further evidence after the hearing. Until then, the only ground that survived until the hearing was what I have described as “the broad ground”, on which she failed. “The narrow ground” was run only very late; but its lateness was due to the failure of the Council to disclose earlier how they in fact dealt with community care service users who lived with close relatives who were recipients of housing benefit.[54]This is a claim in which an appropriate order for costs should be issue dependent. I shall order that the Council pay the Claimant’s costs of the narrow issue; but the Claimant shall otherwise pay the Council’s costs of the claim.