LAST month Scotland’s highest civil court ruled that Glasgow’s charging policy for community care services did not discriminate against people who were disabled.

If you’re disabled in Glasgow, you will have to pay around £30 each week from social security benefits towards the cost of non-residential social care. Why is this an issue?

It’s more expensive to achieve the same basic quality of life as anyone else if you’re severely disabled. A profound learning disability might mean that public transport isn’t accessible without support. It can also mean you can’t go to places on your own like walking to the park, going to the cinema or socialising with pals.

There are numerous extra costs that come with being disabled and trying to live an independent life. A report by the Joseph Rowntree Foundation found that social security benefits only met half of the extra costs of disabled people with medium to high support needs. There was a weekly shortfall of £118 to £189 between income and a “disabled person budget standard”.

In 2015, the “Extra Costs Commission” found, on average, someone with a neurological condition will spend almost £200 a week on costs related to their disability, while someone with a physical impairment will spend up to £300.

Local authorities in Scotland didn’t always charge for social care. COSLA – the body that represents Scottish councils – explains that charging powers have been used more since council funding from the Scottish Government decreased in real terms by 7% between 2014 and 2020. Over recent years, those charges have been rising.

COSLA’s guidance on charging for social care is fair and helpful. It says: “To ensure the extra costs of being disabled are taken into account by charging policies, Local Authorities should be proactive in considering further disregard of income where additional expenditure is incurred by a supported person as a result of living as a disabled person”.

COSLA examples of “disability related expenditure” (DRE) that should be considered by councils include additional heating costs; the purchase, maintenance and repair of disability related equipment; specialist dietary costs; specialist clothing; help with cleaning and other domestic tasks; extra washing and additional bedding costs.

You’d think the effect of having DRE taken into account would mean a severely disabled person isn’t charged £30 a week? But in most cases very little if any DRE is ever taken into account by Glasgow City Council (GCC). Glasgow isn’t unusual in this approach as most Scottish local authorities don’t take DRE into consideration when deciding how much to charge for care services.

In Glasgow, there isn’t even a form to apply for DRE, or basic guidance on what evidence is necessary to vouch for it. Councils in England and Wales have detailed forms and guidance to help people set out DRE.

Last month’s judgment of the Inner House of the Court of Session in McCue v. GCC concerned the failure of the council to take into account the DRE of a young Glaswegian with Down’s Syndrome. GCC’s policy and practice is to exclude DRE if it considers it to be discretionary spending which isn’t necessary to meet a person’s needs as assessed by it.

The Inner House agreed. The court ruled that DRE can only arise as part of your assessed care needs. In a nutshell, during the 35 hours that you go to a day care centre.

The extra costs that arise outwith your assessed care needs – evenings, overnight, the weekend or during holidays – are irrelevant.

This restrictive interpretation of DRE is now binding law in Scotland. It is out of kilter with how DRE is treated across the rest of the UK. The English Court of Appeal recognises DRE can incur anytime and anywhere: it isn’t limited to needs as assessed by councils.

In England, the courts recognise DRE can include extra costs associated with a carer who has to accompany a disabled person to an evening activity or holiday.

Statutory guidance in England makes it clear that DRE includes any “reasonable additional costs directly related to a person’s disability” wherever and whenever they arise.

It is unfortunate that the Scottish Government has never taken the opportunity open to it to issue statutory guidance – but that matters not.

This week, I made an application on behalf of my client for permission to appeal to the UK Supreme Court in McCue v GCC. A proposed appeal is vital because as a matter of law disabled persons are treated less favourably in Scotland than the rest of the UK when it comes to making reasonable adjustments in relation to DRE and charging for social care.

The 2010 Equality Act has been read down in Scotland. The public interest requires this to be challenged. There can be no basis for UK equality law being interpreted less favourably in Scotland.