08 Dec Under threat of judicial review Kent County Council change their practice on charging disabled individuals for their care

Judicial review proceedings issued challenging Kent County Council’s (“KCC”) care charging policy, which the Claimant had alleged had resulted in individuals overpaying for their social care, was settled just days before trial after KCC, who despite maintaining their policy was lawful, agreed to make significant changes to the way its policy applied in practice.

Permission for judicial review had been granted on all grounds and trial had been listed for 3 and 4 December 2025.

Background – KCC’s policy

When calculating what a person must pay towards their social care, a local authority must if treating disability benefits as income, deduct what a person is spending on the additional costs they have because they are disabled (“disability related expenditure” – DRE).

KCC’s policy, since 2003 has been to deduct a standard amount for DRE and to only assess if a person requests an assessment of DRE. In 2003 KCC set the standard amount at £21, and reduced this to £17 in 2011 to increase their income. The £17 has been applied since – it has never been increased for inflation or reviewed to see if it reflects average DRE.

In September 2024, the Council changed their policy of disregarding higher level disability benefits, which led to thousands of individuals seeing sharp increases to their weekly care charges. At the time KCC considered whether they should automatically assess or offer an assessment of DRE to the 3,864 individuals directly affected by the policy change before increasing their charges. But KCC decided not to do so as this would “reduce the funding available for social care and have a significant impact on operational resources”.

The judicial review challenge

The increase in care charges had a hugely detrimental impact on the Claimant PXA, who was forced to cancel her much needed care because she could not afford the new charges. Only upon seeking legal advice did PXA learn that in fact she had overpaid for her care charges for years because her DRE had never been assessed.

PXA brought judicial review proceedings advancing four grounds of challenge:

1. That the Council’s approach to disability related expenditure (“DRE”) in its revised charging policy was unlawful, including its approach on backdating and refunding DRE.
2. That the approach was adopted for an improper purpose of saving KCC money and administrative convenience.
3. That the Council had acted unlawfully in refusing to backdate further PXA’s DRE and refund her what she had overpaid.
4. That the Council had failed to comply with its statutory equalities duties under s.149 of the Equality Act 2010.

Issues with KCC’s policy

Whilst KCC maintained in their defence that the vast majority of individuals paying for their care charges would have DRE of less £17, the Claimant’s evidence (which the Defendant disputed) suggested otherwise:

• PXA’s own DRE was more than double the standard amount, and the other 3 individuals Gold Jennings represent saw even greater DRE increases (one client had DRE of 10 times KCC’s standard rate). The failure to assess DRE sooner meant that all Gold Jennings clients had overpaid for many years, with total overpayments of tens of thousands of pounds.
• Compelling evidence provided by Inclusion London, a charity supporting disabled people nationwide, including a dedicated website providing advice on DRE and a virtual assistant to help people calculate their DRE (https://www.inclusionlondon.org.uk/chat-bot/), which highlighted the additional costs disabled people incur in their day-to-day lives due to their disabilities and how DRE for many people was likely to be significantly more than £17 per week.
• Even KCC’s own evidence showed that the average DREs of those who were assessed was well in excess of £17 per week. The individual financial assessments conducted in the 11 months since the September 2024 policy change, put average DRE at £55.46 per week (3 times KCC’s standard rate), meaning that individuals with this average DRE would have been overpaying by nearly £2,000 per year.

KCC’s policy is to only backdate DRE to the date that the person provided proof of the DRE, and not to the date that they had requested an assessment or further back to the date when they began incurring this expenditure. Evidence was provided for PXA which showed that there could be weeks and even months between a person requesting an assessment of their DRE, during which period only the standard amount of £17 per week would apply, and KCC’s policy was not to automatically refund the difference even if the assessment subsequently concluded a person had DRE of much more than this.

During the case PXA also provided evidence that she was never properly been told about DRE or that she could request an assessment. It was never discussed with her even though her disabilities meant she needed verbal communication until after KCC’s policy change (which was years after she had started paying for her care), it was never mentioned in the annual charging letter and it was only in August 2024 that the FAQ sent with the annual charging letter referred to the fact that an assessment of DRE could be requested (though still did not explain what DRE actually was or how it could reduce care charges). Consequently, PXA did not know to request an assessment of DREA and would have in any event needed support to do so due to her disabilities.

Evidence provided in support of PXA’s claim showed that her situation was not unique: it appeared that there would be hundreds if not thousands of individuals like PXA who were unaware that they should request an assessment of DRE to reduce their care charges. KCC’s own statistics show that out of the 16,000 individuals paying for their care, only a few hundred had requested a DRE.

Whilst the scale of the issue is unknown because KCC only assess if asked to do so, the amounts involved are potentially huge. KCC’s 2024 Equality Impact Assessment identified that around 16,000 individuals were receiving chargeable care services, with just under 4,000 people directly affected by the September 2024 policy change. If just 20% of those paying for their care affected by the policy had DRE of £55 (average amount of DRE on assessment in Kent) but failed to ask for an assessment, KCC would receive approximately £1.6 million per year in overpaid care charges.

Agreement to settle the claim

Whilst KCC maintain that their policy was not unlawful, they have agreed to make significant changes to their practice guidance and processes which will affect how their policy applies in practice. These include:

• Ensuring that the annual charging letters will now refer to DRE and include a link to a DREA Factsheet.
• The DREA Factsheet will be amended to provide clearer guidance, with KCC now ensuring that it is routinely enclosed with financial assessment correspondence.
• Amending the Council’s internal practice guidance to tell practitioners that they must explain to individuals before they are charged what DRE is, what typical expenses may be DRE, how this may impact on what they are charged; how they can request an individual assessment of DRE and what information and evidence they need to provide during the assessment.
• Improving KCC’s case management system so that practitioners must confirm they have discussed DRE and that they have provided the relevant DRE factsheet, and if they have not, explain the non-compliance.
• The internal practice guidance will also be amended to provide concrete examples of when discretion to backdate DRE further should be exercised, including emphasising the need to complete an assessment promptly; that where action by the Council has led to a delay in the provision of evidence about DRE then the normal position will be for the Council to backdate to the date a person requested an assessment; if there has been a delay in receiving evidence due to exceptional circumstances then the Council will consider backdating further so a person is not disadvantaged and that a practitioner can consider backdating further where there is good reason why an individual did not request a DREA sooner.

KCC also agreed to credit a ‘goodwill’ amount to PXA to reduce her care charges in the future.

Clare Jennings of Gold Jennings says:

“For the past 20 years KCC has operated a ‘wait and see if we’re asked” approach to assessing a person’s DRE, applying a standard deduction of £17 per week which our evidence suggests is likely to be much less than many individuals will be spending on meeting their disability needs. At the same time, KCC has done very little until PXA brought these proceedings to tell people that they can request an assessment of their disability spending which might reduce their care charges. The consequence has been that my clients have been overpaying by thousands of pounds each year for their care, for many years. I am deeply concerned that my clients’ situation is not unique and that there will be hundreds, if not thousands, of others like them in Kent, and thousands more in other local authority areas who operate similar policies, who have overpaid for their care enriching local authorities by tens of millions of pounds. These are severely disabled individuals, many of whom are on low income because their disabilities prevent them from working, who can ill-afford to overpay for their care charges. I hope that the practical changes that KCC will now implement will mean that more people are aware that what they spend on their disability needs could reduce their care charges. I would strongly encourage anyone paying for care in Kent to seek an assessment of their disability related spending as soon as possible. Doing so could significantly reduce, and even eliminate, what they must pay towards their care support.

Svetlana Kotova, Director of Campaigns and Justice at Inclusion London says

“We are pleased with the outcome of this legal challenge and sincerely hope the changes that Kent agreed to make will enable many Disabled people who use social care to keep more of their money.  This case shows very powerfully the problems in practice with the DRE assessment process, which in theory allows Disabled people to prove their extra disability costs so that they can keep more of their disability benefits, but is often unworkable.  People don’t know about DRE and the process of claiming it is very complicated and often demeaning.  It is wrong that people with very high support needs end up being overcharged for the essential care they need.  This just pushes Disabled people into deeper poverty.  This is why Inclusion London have been campaigning to scrap care charging altogether. 

More information

Gold Jennings will shortly be publishing further guidance for those paying for care in Kent on their website.

For general guidance and resources about DRE, including a virtual online assistant that can help you with identifying what your DRE might be, please see Inclusion London’s website: https://www.inclusionlondon.org.uk/chat-bot/  and How to Challenge Social Care Charges