Council agrees to make changes to practice guidance on care charging following judicial review threat

Whilst the council maintains its policy was not unlawful, it has agreed to make “significant changes” to its practice guidance, according to the claimant’s lawyers, Gold Jennings Solicitors.

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

However, before the claim was heard, the council agreed to make “significant changes” to its practice guidance and processes, including ensuring that annual charging letters now refer to disability related expenditure (DRE) and include a link to a DRE assessment factsheet.

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.

The council’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, the council set the standard amount at £21, and reduced this to £17 in 2011 to increase their income.

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, Gold Jennings Solicitors said.

The increase in care charges had a detrimental impact on the claimant in the case, who was forced to cancel care because she could not afford the new charges.

Upon seeking legal advice, the claimant found she had overpaid for her care charges because her DRE had never been assessed.

The claimant brought judicial review proceedings advancing the following 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.

The council maintained that the vast majority of individuals paying for their care charges would have DRE of less than £17.

Gold Jennings Solicitors said: “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 [the claimant] 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.”

Settling the claim before the hearing, Kent County Council agreed to make changes to their practice guidance and processes, which will affect how its policy applies in practice.

The changes include:

• ensuring that the annual charging letters will now refer to DRE and include a link to a DREA Factsheet
• amending the DREA Factsheet to provide clearer guidance
• amending its 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 its 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, and
• amending the internal practice guidance to provide “concrete examples” of when discretion to backdate DRE further should be exercised.

According to the law firm, the council also agreed to credit a ‘goodwill’ amount to the claimant to reduce her care charges in the future.

Clare Jennings of Gold Jennings Solicitors said: “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 [the claimant] 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."

She added: “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.”

A spokesperson for Kent County Council (KCC) said: “Faced with increasing demands for complex care, rising costs of care and a lack of adequate funding from central government, we are having to take tough decisions to make sure future essential services are sustainable. Unlike a number of other UK councils, KCC delayed using powers given to local authorities under 2014’s Care Act to take into account higher, or enhanced, rates of disability benefits when assessing how much people should contribute to the cost of their care. Following public consultation in 2024, the decision to change this policy and increase the amount some people contribute to the cost of their care was not taken lightly and we included a £900k contingency in the budget to help with increased Disability Related Expenses.”

Lottie Winson