Case Comment – R (McDonald) v Royal Borough of Kensington & Chelsea  UKSC 33
01 Monday Aug 2011
In this case, the issue for their Lordships was the lawfulness of the respondent council’s proposal to withdraw funding for a night-time carer for Ms McDonald (who required assistance accessing a commode to toilet at night) and provide incontinence pads instead. The proposal would have reduced the cost of Ms McDonald’s care by £22,000 per annum but Ms McDonald considered that the proposal was an “intolerable affront to her dignity” in circumstances where she was not incontinent and did not wish to be treated as though she was.
The facts of the case are summarised in the Case Preview.
In short, the council had conducted a needs assessment in July 2008 which concluded that Ms McDonald required assistance to access a commode at night. That need was reiterated in a care plan in November 2008. Nonetheless, in a letter dated 21 November 2008, the council informed Ms McDonald that it intended to immediately cut the amount of funding available to her with the effect that a night-time carer could no longer be provided. Other options had been considered and offered to Ms McDonald but had been refused. The parties were at an impasse. On 4 November 2009, and prior to the Court of Appeal hearing, the council carried out a care plan review which concluded that Ms McDonald’s (more generally described) night-time toileting needs could be met appropriately by the provision of incontinence pads. A further review was carried out in April 2010 which drew similar conclusions.
In finding that the care plan reviews carried out in 2009/2010 included a reassessment of Ms McDonald’s needs (and that those reassessed needs were capable of being met by the provision of incontinence pads), the Court of Appeal dismissed Ms McDonald’s appeal and she appealed to the Supreme Court.
Four issues were identified by the parties as arising:
(1) Was the Court of Appeal correct to hold that the 2009/2010 care plan reviews were to be read as including a reassessment of Ms McDonald’s community care needs;
(2) Did the council’s decision to provide pads interfere with Ms McDonald’s rights under Art.8, European Convention on Human Rights 1950 and, if so, was such an interference justified and proportionate;
(3) Were the council operating any relevant policy or practice for the purposes of s.21E(1) of the Disability Discrimination Act 1995 (“DDA 1995”) and, if so, was this policy justified as a proportionate means of achieving a legitimate aim, namely the equitable allocation of limited care resources; and
(4) Had the council failed to have due regard to the needs specified in s.49A of the DDA 1995 (“the general disability equality duty”) when carrying out their functions in this case?
Their Lordships held, by a majority (Lady Hale dissenting), that the appeal should be dismissed.
Regarding the first issue, Lord Brown, with whom Lords Dyson and Walker agreed (Lord Kerr agreed with the result but for different reasons), held that the 2009/2010 care plan reviews did include a reassessment of Ms McDonald’s care needs for the reasons given by Rix LJ in the Court of Appeal at , namely:“53. In my judgment, the 2009 and 2010 reviews are to be read as including a reassessment of Ms McDonald’s needs. It is irrelevant that there has been no further separate ‘Needs Assessment’ document. Such a document is not, it seems, necessary in the first place, because a care plan could incorporate a needs assessment; but in any event FACS itself contemplates that a care plan review will incorporate a review of assessed needs. As for the 2009 and 2010 reviews in this case, it is noticeable that they no longer assess Ms McDonald’s needs as including assistance to access the commode at night, although they recognise that that is what Ms McDonald wants. On the contrary, they refer to Ms McDonald’s night-time toileting needs in much more general terms (as the earlier needs assessments had at one time done). Thus they speak of ‘need for support at night’ and that the ‘need should be managed through the use of incontinence pads’. They specifically consider that the elimination of the risk of injury is best achieved by avoiding a transfer to the commode, and that Ms McDonald’s desire for independence and privacy is best accommodated by dispensing with a night-time carer. Ms McDonald needs assistance safely to access the toilet only if she uses it at night, but, with the use of pads there is no need for such use. The issue is whether pads should be used or not ‘to meet her toileting needs’. The use of pads is ‘a practical and appropriate solution to Ms McDonald’s night-time toileting needs’. Ms McDonald did not want to discuss the use of pads ‘as a way of meeting her toileting needs’. Her ‘need to be kept safe from falling and injuring herself can be met by the provision of equipment”.
Lord Brown noted that the first issue had not been couched in terms that, under domestic law, the council were not entitled to reassess Ms McDonald’s needs in the manner they had.
Lord Kerr disagreed that the 2009/2010 care plan reviews included a reassessment of Ms McDonald’s needs, observing that the issue throughout concerned access for the purpose of toileting rather than toileting itself. He held that the decision to change the care plan was not prompted by any change in the view about Ms McDonald’s needs but by the conclusion that the arrangements that were in place to meet the needs exceeded what was required. His Lordship nonetheless held that the essential question on the first issue was whether “needs” were to be considered as comprising the means by which the disabilities of Ms McDonald may be catered for, as well as the actual nature of the disability. He concluded that, it was open to the council to re-assess Ms McDonald’s needs, to re-categorise them as a need to avoid leaving bed during the night and to conclude that this need could be met by providing her with the materials that would obviate the requirement to leave her bed. Whilst this was not the way in which the council had actually dealt with Ms McDonald’s case, this was no more than a technical failure on their part and could easily be overcome. Consequently, Ms McDonald’s challenge would have to fail in the exercise of the court’s discretion.
As for the second issue, Lord Brown summarised the law concerning positive requirements to provide, inter alia, welfare support under Art.8, ECHR 1950. He concluded that it could not plausibly be argued that the council had failed to afford Ms McDonald respect, but went on to say that, if, in the event there had been such an interference, it was justified (save for the period prior to the 2009 review where the council’s proposal was not “in accordance with the law”) on the grounds that it was necessary for the economic well-being of the council and the interests of their other service-users and was a proportionate response to Ms McDonald’s needs because it afforded her the maximum protection from injury, greater privacy and independence, and resulted in a substantial costs saving. Lords Brown, Dyson, Walker and Kerr agreed.
On the third issue, Lord Brown observed that the argument that the council were applying a practice policy or procedure for the purposes of s.21E(1), DDA 1995 was hopeless and that, even if that were the case, the council’s acts must be regarded as constituting a proportionate means of achieving a legitimate aim for the reasons given in respect of the first issue.
Finally, regarding the fourth issue, Lord Brown again observed that the argument, that the absence of an express reference to s.49A, DDA 1995 gave rise to an inference that the council had failed to comply with the general duty under that section, was hopeless. His Lordship held that in circumstances where a person is ex-hypothesi disabled and the public authority is discharging its functions under statutes which expressly direct their attention to the needs of disabled persons, it may be entirely superfluous to make express reference to s.49A 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. This case was wholly unlike the case of Pieretti v Enfield London Borough Council  EWCA Civ 1104;  PTSR 565 (which held that the section 49A duty complements a housing authority’s duties to the homeless under Part 7 of the Housing Act 1996). His Lordship noted that the relevant provisions of the DDA 1995 had been superseded by broadly comparable provisions in the Equality Act 2010.
In the only dissenting judgment, Lady Hale observed that the parties had drawn the parameters of the appeal too narrowly (failing to focus of what she considered the nub of the case, namely the interpretation of s.2(1) Chronically Sick and Disabled Persons Act 1970) and had missed the opportunity to challenge the decision of the bare majority in R v Gloucestershire County Council, Ex p Barry  AC 584. Had they done so, Her Ladyship stated that she would have agreed with the minority decision in that case. Her Ladyship went on to hold that, nevertheless, the decision in Barry did not prevent her from concluding that the council’s proposal in this case was irrational because they were seeking to meet Ms McDonald’s need (for assistance accessing a lavatory) with a solution to a need she did not have (protection from incontinence). Further, it was held, logically, the decision of the majority in this case would entitle an authority:
a) to withdraw assistance even though the client needed to defecate during the night and thus might be left lying in her faeces until the carers came in the morning; and
b) to withdraw assistance during the day. The only constraint would be how frequently (or rather how infrequently) it was deemed necessary to change the pads or sheets, consistently with the avoidance of infection and other hazards such as nappy rash.
The other Lords made clear their strenuous disagreement with Lady Hale’s interpretation.
This case is an unsatisfactory outcome on a number of levels. Plainly it will come as distressing news to Ms McDonald but its implications in terms of the priority that can now be placed on financial considerations by council’s when initiating and carrying out reassessments are of real concern. It seems that authorities have carte blanche to reassess (and re-categorise) needs which, from the applicant’s perspective, have not changed, on the grounds that financial constraints necessitate the need being met in a more cost-effective manner. Moreover, in determining the “need”, the way in which that need might be met, is a relevant factor. It is, in the author’s view, difficult to escape the conclusions of Lady Hale, if only as a general proposition. For that increasing number of people who are dependent upon the provision of social care, this case may prove more than just a missed opportunity.