Proposed change in care package for disabled woman not unlawful, rules Supreme Court

A local authority did not act unlawfully when it sought to amend a disabled woman’s care package by substituting her night-time carer with the provision of incontinence pads when she was not in fact incontinent, the Supreme Court has ruled.

The decision is expected to give local authorities greater discretion in deciding how to meet people’s needs, but has been described by the Equality and Human Rights Commission as “a serious setback” for people who receive care in their home.

In the case of R (on the application of McDonald) v Royal Borough of Kensington and Chelsea [2011] UKSC 33, Ms McDonald had suffered a stroke in September 1999 which left her with severely limited mobility. The appellant also suffered from a small and neurogenic bladder which makes her have to urinate some two to three times a night.

Through a care package provided by RBKC, she was able to access a commode with the help of a carer. In November 2008, however, the local authority suggested that Ms McDonald should use pads.

This would mean there was no need for a night-time carer and reduce the cost of her care by £22,000 a year. It was argued that the change would also provide Ms McDonald with greater safety, on the basis that the risk of injury whilst she was helped to the commode was removed. She would also enjoy independence and privacy, the council suggested.

Ms McDonald challenged the decision, suggesting that the thought of being treated as incontinent and having to use the pads was an "intolerable affront to her dignity".

She lost in the High Court, where the deputy judge held that it was open to the local authority to meet Ms McDonald’s need, identified in a Needs Assessment dated 2 July 2008 as “assistance to use the commode at night”, in a more economical manner by provision of pads.

The Court of Appeal disagreed. It said the clear language of the Needs Assessment could not be extended in a way proposed by the deputy judge and that at the time when proceedings were commenced Kensington and Chelsea was in breach of its statutory duty.

However, the Court of Appeal concluded that since the council’s decision to amend the care package was not in fact put into operation, and since the need had been reassessed in Care Plan Reviews of November 2009 and April 2010 as the appellant’s “night-time toileting need”, Ms McDonald had no substantial complaint.

Ms McDonald took her claim to the Supreme Court, where she argued that:

• the 2009/2010 Care Plan Reviews did not in fact contain a reassessment of her needs
• the decision breached her rights under article 8 of the European Convention on Human Rights (“article 8”), the right to respect for private and family life
• the decision was taken in breach of section 21 of the Disability Discrimination Act 1995 (“DDA”); and
• the council failed to have due regard to the need to promote equality of opportunity of disabled persons under section 49A of the DDA (now superseded by comparable provisions in the Equality Act 2010).

The Supreme Court has dismissed the appeal, by a majority of 4-1.

On the first issue, Lord Brown, who gave the lead judgment, said it seemed impossible not to agree with Rix LJ’s conclusion in the Court of Appeal.

This was that, in accordance with the Fair Access to Care Services (FACS) Guidance issued by the Secretary of State for Health, the Care Review Plans could and in fact did incorporate a review of Ms McDonald’s needs.

Lord Walker added: “In construing assessments and care plan reviews, it should not be overlooked that these are documents that are usually drafted by social workers. They are not drafted by lawyers, nor should they be.

“They should be construed in a practical way against the factual background in which they are written and with the aim of seeking to discover the substance of their true meaning.”

Lord Walker said he was in no doubt that the Care Plan Reviews contained reassessments of Ms McDonald’s needs.

Lord Kerr agreed with the majority but took a narrower view. He concluded that although the council did not intend to carry out a re-assessment of the appellant’s needs in the 2009/2010 Care Plan Reviews, in fact “the exercise then conducted yielded sufficient information to allow the court to conclude that Ms McDonald’s needs could be properly re-cast and warranted a change in the means by which those needs may legally be met”.

On the issue of Ms McDonald’s Article 8 rights, the Supreme Court ruled that she could not establish that there had been interference.

Lord Brown said: “There is, of course, a positive obligation under Article 8 to respect a person’s private life. But it cannot plausibly be argued that such respect was not afforded here.

“The respondents went to great lengths both to consult the appellant and Mr McLeish [her partner] about the appellants’ needs and the possible ways of meeting them and to try to reach agreement with her upon them.”

The judge said the council respected Ms McDonald’s human dignity and autonomy, allowing her to choose the details of her care package within their overall assessment of her needs.

Lord Brown added that even if Article 8 interference were established, it would be clearly justified under article 8(2) on the grounds that it was necessary for the economic well-being of the borough and the interests of its other service-users, and was a proportionate response to Ms McDonald’s needs by affording her the maximum protection from injury, greater privacy and independence, and would result in a substantial costs saving.

Lord Brown also rejected the appellant’s claim of a breach of section 21 of the DDA, under which the council may not operate any “practice, policy or procedure” which makes it impossible or unreasonably difficult for disabled persons to receive any benefit conferred on them.

The judge said he found it impossible to regard RBKC’s decision in the case as the manifestation or application of anything that could properly be characterised as a “practice, policy or procedure” within the meaning of the legislation.

“Rather, in taking the impugned decision, the respondents were doing no more and no less than their statutory duty,” he said.

Even if that were not the case, the council’s acts must be regarded as constituting “a proportionate means of achieving a legitimate aim” within the meaning of section 21D(5) of the DDA.

On the fourth issue – the alleged failure to have “due regard” – Lord Brown said that where the public authority is discharging its functions under statutes which expressly direct its attention to the needs of the disabled persons, “it may be entirely superfluous to make express reference to section 49A of the DDA and absurd to infer from an omission to do so a failure on the authority’s part to have regard to their general duty under the section”.

The question is one of substance, not of form, the judge said.

The dissenting judgment was given by Lady Hale, who said she would have allowed Ms McDonald’s appeal on a basis outlined by Age UK in its intervention (but not raised by the appellant).

Lady Hale agreed with Age UK that it was “irrational in the classic Wednesbury sense” for the local authority to characterise Ms McDonald as having a need different from the one she in fact had.

Under section 2(1) of the Chronically Sick and Disabled Persons Act 1970, disabled people have a right to practical assistance from their local authority to meet their needs. Lady Hale said that in complying with section 2(1) the local authority had to answer rationally two separate questions: first, what are the needs of the disabled person and second, what is necessary to meet those needs?

The judge said it seemed to her that the need for help to get to the lavatory or commode was so different from the need for protection from uncontrollable bodily functions that it was irrational to confuse the two, and meet the one need in the way that is appropriate to the other.

Lady Hale added: “In the United Kingdom we do not oblige people who can control their bodily functions to behave as if they cannot do so, unless they themselves find this the more convenient course. We are, I still believe, a civilised society.”

Age UK suggested that the ruling could have “potentially devastating” consequences for thousands of older people if other councils took similar decisions to that taken by Kensington and Chelsea.

Michelle Mitchell, Charity Director at Age UK, claimed the decision was "shameful". She said: "Older people have a fundamental right to dignity and forcing someone to sleep in their own urine and faeces could not be more undignified.

"This judgement opens the door to warehousing older people in their own homes without regard to their quality of life. Care should not be just about keeping people safe. It must enable them to live dignified and fulfilled lives.”

Alex Rook of Irwin Mitchell solicitors who represented Age UK said: "The submissions Age UK made to the Supreme Court in this case sought to ensure that local authorities follow the correct assessment procedures to establish an older person’s needs and to then put in place a lawful package of care.

“Whilst Age UK is acutely aware of the current difficult economic climate, the right balance must be struck between the rights of the individual and the interests of the community, and Age UK continues to find it difficult to understand how it can be rational or reasonable to expect an older continent person to use incontinence pads rather than to assist them to access a toilet.”

John Wadham, Group Director (Legal) at the Equality and Human Rights Commission, described the ruling as a significant setback for people who receive care in their home. “Ms McDonald is not incontinent, however this judgment means she will be treated as such,” he said.

Wadham added: “Local  authorities will now have greater discretion in deciding how to meet a person's home care needs and will find it easier to justify withdrawing care. This means that older people's human rights to privacy, autonomy and dignity will often be put at serious risk.

"The Court has missed a significant opportunity to interpret the law to protect some of the people most vulnerable to harm in society. The Commission's inquiry into care in the home has already highlighted some of the problems with the current system of home care. This judgment will only fuel those problems."

Philip Hoult