IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT FRANCES PATTERSON QC (SITTING AS A DEPUTY HIGH COURT JUDGE)
[2009] EWHC 1582 (Admin)
http://www.bailii.org/ew/cases/EWCA/Civ/2010/1109.html
This Court of Appeal decision concerns the right of a local authority to withdraw or amend care support where the recipient's circumstances are unchanged.
The case involved Elaine McDonald, 67, a former Scottish Ballet principal.
Ms McDonald had a stroke in 1999 and needs support to continue living on her own in her Earl's Court flat. She has both mobility problems and problems with her bladder which mean she needs to use the toilet frequently at night.
In 2008, she fell and broke her hip and was assessed by Kensington and Chelsea as having an eligible need for support both during the day and "assistance at night to use the commode".
Once an "eligible" need is determined, a local authority must, by law, provide services to meet that need. Initially Kensington and Chelsea provided a sleep-in care worker for seven nights a week but later decided that it could save £22,000 a year by supplying Ms McDonald with incontinence pads for use at night and cutting care support to four-nights-a-week.
The judgement
The court found that the council was wrong to reduce the care in the way it did, but upholds its action in later reviewing McDonald's case.
"The Royal Borough's ultimate decision to meet Ms McDonald 's reassessed night-time toileting need by the use of pads was a reasonable decision. The Royal Borough has acted cautiously and generously in seeking to accommodate Ms McDonald 's wishes. However, it is responsible also for acting on behalf of the interests of all the clients whose welfare it supports with the use of limited resources. The evidence is that the use of pads in circumstances such as those which afflict Ms McDonald is a widespread, satisfactory and accepted practice. Although it does not suit Ms McDonald 's preferences, and it cannot make for perfection in a difficult situation, it provides safety and a large degree of independence and privacy."
This decision upholds a council's right to amend a care plan where a cheaper alternative is available. The key is whether the alternative is suitable. In this case the Court thought that it was.
PDF version Councils' power to cut services on cost grounds without an assessment of needs could be overturned by the Supreme Court next week, after the right to an appeal was granted in a landmark case.
In November last year, Eileen McDonald, who is disabled, lost her case to force Kensington and Chelsea Council to continue to fund her night-time care, which provided assistance for her frequent overnight visits to the toilet. The London council blamed the withdrawal of the service on cost.
Kensington and Chelsea has now replaced McDonald's sleep-in carer with incontinence pads.
The decision paved the way for councils to remove care from hundreds of thousands of people on cost grounds alone.
But lawyers appealing against the decision have now been granted the right to have the case heard in the Supreme Court on 4 April.
Douglas Joy, senior solicitor at the Disability Law Service, which is fighting the case, funded by the Equality and Human Rights Commission, said: "It's the highest court in the land. It's the last chance to score a victory for Eileen."
Joy will argue that the removal of night-time staff without a new assessment of need breaches community care law. Although McDonald's care was reviewed in 2009 and 2010, she says she was not aware that this could fundamentally change provision. This, it will be claimed, was tantamount to a failure to meet the guidance on what constitutes a reassessment of need.
Joy will also argue the original decision breaches McDonald's right to dignity, which is guaranteed by article eight of the European Convention on Human Rights.
In addition, he will claim that McDonald has been discriminated against on the grounds of her disability because the council had failed to make adjustments to services to account for this.
Kensington and Chelsea Council declined to comment.
http://www.communitycare.co.uk/Articles/2011/03/31/116585/supreme-court-...
Councils' right to cut people’s care without an explicit reassessment of need was upheld in a Supreme Court judgement today.
Elaine McDonald lost an appeal to get her night-time care reinstated after it was cut by Kensington and Chelsea Council last year. The council had reduced the number of nights it provided a carer to assist McDonald to the toilet and instead insisted that McDonald used incontinence pads.
McDonald had claimed that two reviews of her care package in 2009 and 2010 had not constituted a reassessment of her actual needs, only a review of how care was provided.
However, today four of the five judges hearing the case rejected her pleas.
Lord Dyson said: “It is true that the care plan reviews did not state in terms that the need was being reassessed from “assistance at night to use the commode” to “toileting needs” or the provision of pads for night-time use”. But there can be no doubt that this is the effect of the words used in the documents.”
Related articles
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Controversial court judgement 'used to justify care cuts'
http://www.communitycare.co.uk/Articles/2011/07/06/117131/supreme-court-...
Elaine McDonald loses her Supreme Court fight, against Kensington and Chelsea, to her right to dignity in care
Elaine McDonald, formerly Principal Ballerina with the Scottish Ballet, has lost her fight against the Royal Borough of Kensington and Chelsea (RBKC) at the Supreme Court.
Disabled as a result of a stroke in 1999, Elaine lost strength and mobility on the left hand side of her body, and her vision and spatial awareness have also been affected.
Elaine uses a three point stick and the assistance of a carer to mobilise at home, and uses a wheelchair outside her home. Elaine’s care package was to cover night time care, to prevent further falls and to provide supervision throughout the night for a neurogenic bladder condition.
RBKC will now cut Miss McDonald’s care services withdrawing night time care, replacing with incontinence pads, despite the fact she is not incontinent.
The majority of Judges at the Supreme Court found that RBKC was free to alter its care package and it was free to decide what her care needs were.
A 4:1 majority of Judges ruled that RBKC acted lawfully in their review of Elaine’s night time care needs. Baroness Hale of Richmond provided the dissenting Judgment, and has said she is troubled by the implications of the decision.
A further implication of the Judgment is that the decision to provide incontinence pads to Elaine, despite the fact that it is accepted that she is not incontinent, does not breach article 8 of the European Convention on Human Rights, thus not affording her the right to respect for dignity in her private life.
Douglas Joy, Senior Solicitor at the Disability Law Service says:
“This is a worrying Judgment for anyone that is elderly, disabled or vulnerable. It effectively gives local authorities greater discretion to alter care packages to their service users.
We are seeing more and more of this in the current climate of financial cuts. In the 21st century it is a matter of concern to all of us that older and disabled people are not afforded the basic right to dignity.”
RADAR said it was “disgusted” that the Supreme Court – with the exception of Baroness Hale, the one judge who found in favour of the appeal – had spoken out against McDonald’s right to dignity.
Liz Sayce, RADAR’s chief executive, said the judgment showed there was clearly “something fundamentally wrong with the attitudes in society towards disabled people” and that “cost and convenience for a local authority must not and cannot trump dignity for a human being”.
Inclusion London said it was “completely intolerable” that Britain’s richest borough was denying the human rights of disabled people, and that “any decent government would step in” and force the council to provide the necessary support.
In contrast to the other four judges, Baroness Hale said that the needs of the individual should be measured against the standards of “civilised society”.
She 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.”
The Disability Law Service has supported and represented Elaine from her initial application for Judicial Review in the Administrative Court in December 2008. DLS then continued to represent Elaine to the court of Appeal in April 2010 and then to the Supreme Court heard on the 4th and 5th April.
DLS and Elaine are grateful for support provided by Age UK who delivered an endorsement of Elaine's argument through a formal legal intervention at the Supreme Court, and the Equalities and Human Rights Commission who provided financial support from the court of Appeal in April 2010.
Disabled women ask court to force council to think again over cuts
Two older disabled women have this week taken their fight against council cuts to care and support to the high court.
Lawyers for the two women have argued that Lancashire County Council breached the Disability Discrimination Act by failing to take into account the impact of proposed cuts to its social services budget on disabled people.
Both women rely on council funding to pay for the support they need to live in their own homes.
The judicial review hearing at the high court in Manchester ended today, but the judge will not deliver a judgment for at least a month.
Lawyers for the two women want the council to be forced to look again at its plans to cut its social care budget, tighten eligibility for support, and increase care charges.
They argued that the council had a choice as to whether to cut adult social care services and – if it was forced to make cuts – how much those reductions would be, and could have found savings elsewhere in its budget.
They also want the judge to make it clear that the council’s decision to adopt a policy of only providing support to meet personal care needs – which the local authority has now accepted was illegal – was indeed unlawful.
The county council wants to raise the eligibility threshold for support from “moderate” to “substantial”, saving £2.5 million a year for the next two years; cut spending on personal budgets and home care by £12 million over three years; and increase revenue from charging by more than £5.5 million over four years.
The two women are being backed in their legal action by the disabled people’s organisation Disability Equality NW (DENW).
In her witness statement, Melanie Close, DENW’s chief executive, said the council decided to reduce disabled people’s support packages before a consultation on proposed cuts had even started.
And she said the council had agreed its new budget on 17 February, despite its consultation not being due to finish until 11 days later.
After the case, Close said: “It is really difficult to know which way the judgment will go. The judge was knowledgeable and both sides made really good arguments.”
But she welcomed the council’s decision to accept that only providing support for personal care was unlawful.
Mike Calvert, the council’s cabinet member for adult and community services, said in a statement: “We recognise that this is a complicated issue. However, our view remains that we have complied with disability discrimination legislation and the decisions taken in February were entirely within the law.”
The court case was the latest in a series of legal challenges over decisions by public bodies to slash services and spending following huge cuts to government funding.
Protest demonstrates anger over council’s McDonald court win
Activists were set to stage a protest this evening over the treatment of a disabled woman denied the night-time care she needs by her local authority.
The Supreme Court caused outrage earlier this month when it ruled that Kensington and Chelsea council did not break the law by deciding to withdraw night-time support for Elaine McDonald, even though it had assessed her as needing that support.
The council’s decision meant McDonald would be forced to use incontinence pads at night, even though she was not incontinent.
The protest was set to take place outside Kensington and Chelsea’s town hall, while councillors were inside in a cabinet meeting.
Campaigners planned to deliver an open letter to the council, outlining their concerns about McDonald’s case and how she has been treated.
They are also angry that four male Supreme Court judges ruled against McDonald’s appeal, while only the female judge, Baroness Hale, ruled in her favour.
They say that male judges were “undermining a woman’s right to choose how she is helped with personal care” and that night-time personal assistance was “vital to many disabled people’s independence and safety”.
Jenny Hurst, personal budgets coordinator for Action Disability Kensington and Chelsea, one of the disabled people’s organisations taking part in the protest, said they had received support from across the country.
She said there was “real concern” about the council’s decision, and the precedent now set by the courts.
Hurst said that now the council had removed McDonald’s care during the night, there was nothing to stop other local authorities removing such support from disabled people during the day, or even forcing them to be tube-fed twice a day if they needed assistance with eating.
She said: “It is a real human rights issue. It is absolutely terrible for disabled people. Where does choice and control come into it? There is supposed to be a personalisation agenda.”
Claire Glasman, a spokeswoman for WinVisible, the disabled women’s organisation, which was also supporting the protest, said: “Many women feel we have contributed in all kinds of ways and should not be charged or rationed when it comes to needing some care services.
“There has been a fantastic response from all kinds of groups, not only disability groups but also people who feel they will need care in the future and that we need to be supporting each other.”
It is never a good feeling to lose a case, at whatever level. Barrister Stephen Cragg, who represented Ms McDonald in her case against Kensington and Chelsea RLBC ([2011] UKSC 33, 6 July 2011), talked about his disappointment at the Supreme Court’s decision at a special Community Care Law Reports (CCLR) practitioner seminar, ‘Defining community care needs and assessments after McDonald’, held last month. Steve Cragg’s feelings might not have been helped by his opposite number in the case, Kelvin Rutledge, speaking from the audience to outline why he believed that the judgment was correct and there were no grounds for appeal (could this have been a case of getting in his retaliation first?).
The decision in McDonald was disappointing on a number of levels, above all for Ms McDonald herself: the onset of disability is one of the hardest things to face in life. In general, the media coverage of Ms McDonald’s case was sympathetic. It seemed unfair for the council to withdraw care which enabled her to use the toilet at night, as without such assistance she would be forced to use incontinence pads. The council argued that the latter would be a reasonable option, as other people were prepared to do so and its duty was only to keep her ‘safe’. LAG believes that it is unfair to expect someone who is not incontinent to wear incontinence pads: human dignity should be the main consideration in these cases, not cost.
Richard Gordon QC argues in an editorial in the next issue of LAG’s CCLR that the courts got the law wrong when considering the case. At the Supreme Court he believes that the judges failed properly to apply the principles established in the leading case of R v Gloucestershire CC ex p Barry [1997] AC 584, 20 March 1997. Richard Gordon argues: ‘Identifying a need may, according to Barry, factor in the resources available to an authority but once the need has been identified, the means of meeting it are not affected by resources save that the authority may select the most economical means of meeting the need that it has identified.’
The case caught the headlines because of Ms McDonald’s successful career as a ballerina, but the issues that she is confronting are those that many of us will have to deal with as we grow older, as a result of improvements in medical science and life expectancy. The Equality and Human Rights Commission viewed that what was at stake was important enough to fund the Disability Law Service to continue with Ms McDonald’s appeal at the Supreme Court.
Mcdonald was the first case that was purely about care needs to reach the Supreme Court or House of Lords in 15 years. The judgment could have put down some markers about where the law stands in relation to care needs, human dignity and individual choice. Even if the case was still lost, a proper analysis of discrimination and human rights law would have at least provided guidelines for the future on deciding cases in this increasingly important area of law. The fact that the Supreme Court’s ruling did not do so is, perhaps, the greatest regret.
The question is what is the balance to be struck between the individual’s care needs and the resources of the state to secure them? In her dissenting judgment, Lady Hale discussed the necessity to assess individual needs against the standards set by ‘a civilised society’; however, this has no meaning in UK law. Article 8 (the right to a private family life) of the European Convention on Human Rights does though encompass dignity and autonomy. What is acceptable in one European country will vary according to cultural and economic factors; for example, poorer economies in some parts of Europe, as was pointed out by one speaker at the seminar, struggle to provide kidney dialysis to those who need it.
In the UK, the population’s expectations of what a civilised society should provide are higher. An examination of the comments that McDonald has sparked would seem to suggest that a majority of the public believes that the state should take into account an individual’s views on his/her dignity, particularly for such a personal function as using the toilet. So, it would seem that the law on this matter is out of step with public opinion.
In response to the Law Commission’s project on adult social care, the government has said that it will introduce legislation in the next parliamentary session. This will be an opportunity to establish guidance for the courts to interpret and follow on what standard the UK wants to set in respect of an individual’s care needs with regard to factors such as his/her dignity and autonomy. Let us hope that this guidance does not come too late for Ms McDonald and the thousands of people who are in similar circumstances.
The September 2011 issue of CCLR will include a discussion on the implications of McDonald. In addition, the judgment will be discussed at LAG’s Community Care Law Conference, which will be held on 30 November 2011.
Two disabled people have lost their high court challenge over a council’s decision to slash spending on social care services.
They had sought a judicial review of Manchester City Council’s plans to cut spending on adult social care by a total of £39.5 million over two years through increased charges, with about 75 per cent of disabled people likely to pay more for their care.
They had argued at the high court in Manchester that the council failed to consult properly over the cuts and breached its equality duties under the Disability Discrimination Act.
Although Mr Justice Ryder dismissed the judicial review, he has yet to publish his reasons for finding in favour of the council.
A solicitor for the two disabled people, Mathieu Culverhouse, from Irwin Mitchell, said: “My clients are naturally disappointed with the result and will await the full judgment of the court before deciding what steps to take next.”
But he said the case had forced the council to clarify its proposals and to confirm that it would continue to meet disabled people’s eligible needs.
Liz Bruce, the council’s director of adult services, said: “We’ve carried out detailed consultations, and have looked at every option to try our very best to mitigate the impact of the cuts – and ensure that our policies are the fairest we could draw up in these difficult times.
“We are really pleased that this has been recognised by this judicial review and we are now focussed on delivering the savings, whilst at the same time doing everything we can to safeguard the most vulnerable in our city.”
Meanwhile, two disabled men challenging cuts by another local authority are waiting to hear the outcome of their judicial review.
The case, which was heard over two days at the high court in London this week, involved the decision by Isle of Wight Council to tighten eligibility for support and increase charges, which could see 2,000 disabled people on the island lose some or all of their support.
Lawyers for the two men argued that there were failures in the council’s consultation process and a lack of clarity over exactly how the changes would affect disabled people.
Campaigners say the council’s policy has left many people “confused and worried” over whether they will be eligible for support.
The judge is expected to deliver his ruling in the next fortnight.
The two cases are just the latest in a series of high-profile judicial reviews of decisions by public bodies to slash services and spending in the wake of the government’s deficit reduction plan.
The families of two autistic men have won a High Court case over cuts to social care by Isle of Wight Council.
A judge ruled the council's new eligibility criteria was unlawful and should be quashed by the court.
Under the plans only vulnerable adults assessed as critical or at risk of becoming critical would qualify.
Lawyers for the men said it was a "landmark judgement". Isle of Wight Council said the changes were in response to cuts in government funding.
Up to 2,000 vulnerable people on the island would have been affected by the changes planned for April 2012.
Saving money
Until recently the council followed a policy of meeting adult social care needs as long as they were "critical" or "substantial".
However, in February the Conservative-run council resolved to cover these needs only if they involved issues of personal safety and accommodation.
It was attempting to save £1.6m by restricting council-funded care to the most pressing cases.
In a statement, Isle of Wight Council said: "We will now need to spend time reflecting on the implications for both service users and the wider council budget before deciding on our next course of action.
To read more http://www.bbc.co.uk/news/uk-england-hampshire-15690065
Social care service users could find their services being cut as councils look for the cheapest way of meeting their needs, experts are warning.
This comes after the appeal court ruled that Kensington and Chelsea Council in west London had acted lawfully and reasonably in withdrawing some services to save money.
The ruling reiterates the longstanding legal position that local authorities are entitled to choose the cheapest way of meeting an assessed and eligible need, which in this case was for assistance to visiting the toilet at night.
Legal expert Ed Mitchell said: "There are hard decisions to be taken by care providers, but these hard decisions are to be taken by the funding public body rather than the court."
He added: "A local authority's powers to cut services are the same now as they were before the decision."
The test case involved Elaine McDonald, 67, who had a stroke and cannot walk unaided and also has bladder problems, meaning she requires the toilet a lot during the night.
The authority initially identified an eligible need for "assistance at night to use the commode" and funded a carer for seven nights a week.
It subsequently reassessed her needs for financial reasons and decided that she in fact had a more general eligible need for support at night in relation to urination.
The authority said it would meet the need by providing continence pads, saving it £250 a week, though is also currently funding a carer for four nights a week.
McDonald challenged the council's decision, but at appeal it was found to have acted "cautiously and generously" and that it was a "reasonable decision".
Mitchell said: "Increasingly, local authorities are having to take hard decisions about the provision of community care services. It's a timely case, given the budgetary pressures that are around at the moment."
And he added: "The decision may cause authorities to try and define eligible needs in general terms because that gives them more flexibility as to how they meet the needs."
Andrew Cozens, adult social care group lead at the Local Government Association, said the ruling could open the door for other councils to follow suit.
Age UK policy adviser Stephen Lowe said: "The case doesn't change the law. It reflects the existing position. The issue is whether a care and support package meets the person's right to be treated with dignity and with respect for his or her human rights. A decision like this must take these into account as well as an individual's needs. So it's not carte blanche for local authorities."
However Lowe added that the Law Commission's review of community care law needed to take this issue into account.
He said: "The law needs to enshrine a basic level of dignity which older people in receipt of care and support should be able to expect.
"This would seem to be a basic requirement of a civilised society. It is an issue the Law Commission's current review of community care law needs to address."
http://www.communitycare.co.uk/Articles/2010/11/08/115762/door-opened-fo...