LAST WEEK I spent a couple of days in Scotland’s supreme court, the Court of Session, arguing that a policy charging disabled Glaswegians for community care services was discriminatory and unlawful.

I won’t say anything more about this as the judgment is expected next week. It’s the first such legal challenge in Scotland as far as I am aware.

All of this got me thinking about how local authorities take money from peoples’ disability benefits. Is it fair, equitable or just to do so in 21st century Scotland?

I don’t believe so. A person has a disability in law if they have a physical or mental impairment that has a major long-term adverse impact on their ability to go about day-to-day life.

Many people are born with disabilities and many of us will become disabled in life through illness or injury. Yet everyone has the human right to enjoy an independent life in the community of their choosing with such support as required to enjoy a full life like anyone else. These rights are set out in Article 19 of the United Nations Convention on the Rights of Persons with Disabilities and Scottish social work law.

In recognition of this, the UK provides disability benefits such as “personal independence payments” (PIP).

It’s more expensive to be disabled in life. You have extra costs and additional needs because of your disability.

It’s the daily living part of PIP that concerns us because mobility payments are generally left alone for transportation costs. Depending upon the level of living needs this is awarded at £58 or £87 per week.

Here is an example of what happens. You are a person with a profound learning disability and require 24/7 support. You attend a day care centre during weekdays.

Your council will charge you the best part of £30 per week from the daily living part of your PIP as a contribution for the cost of this support. The problem is you still have extra disability-related costs for the remaining 18 hours each day with additional costs over the whole weekend.

READ MORE: Meet top Glasgow lawyer Mike Dailly who is a new columnist at The Evening Times

To put it bluntly. A council may help you meet your support needs for 30 hours each week, but that still leaves 138 hours of needs to meet each week. The law doesn’t force councils to charge disabled people for community care – they have a discretionary power – but they all choose to charge. Councils cannot make people impecunious, but they can take a portion of someone’s disability benefits.

The Convention of Scottish Local Authorities (COSLA) estimate that in the year 2016/17 Scottish councils charged disabled Scots £44m from their disability benefits for community care services. That represented 1.8% of their gross expenditure on non-residential care support.

What’s the problem? The 2010 Equality Act obliges councils not to put a disabled person at a disadvantage in relation to someone who doesn’t have a disability. In practice this means local authorities must take into account and disregard a person’s “Disability Related Expenditure” (DRE) when it comes to charging. This has the effect of treating a person as if they were not disabled. This should mean you’re charged less or nothing at all.

In practice when it comes to charging disabled people for community care services most Scottish councils don’t tell you about DRE; don’t have a form for you to apply for DRE to be taken into account; and won’t give you any guidance about what they think DRE is.

It is a best kept secret. Carers generally only discover there is such a thing as DRE through word of mouth. And when a carer tries to explain a family member’s disability expenditure to their social work department they are often met with ridicule, disbelief or silence.

Unlike in England where there is detailed statutory guidance on DRE there is no Scottish Government statutory guidance on DRE. COSLA has produced some very good guidance however many Scottish local authorities pay minimal meaningless lip-service to this and completely fail to implement the guidance.

For example, COSLA advise local councils should be “proactive in considering further disregard of income where additional expenditure is incurred by a service user as a result of living as a disabled person … it is recommended that local authorities are proactive in gathering information about additional DRE as part of their financial assessment process”.

In practice, few councils do this. Good and bad practice varies like the weather across Scotland.

The SNP have pledged to abolish charges for community services in Scotland if they are returned to Government in 2021. That is to be welcomed. Meantime it cannot be right that disabled Scots are treated so badly when it comes to charging for community care services.