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On appeal from: [2010] EWCA Civ 1109

Concerns the question of whether the local authority acted unlawfully in seeking to amend the appellant’s care package by substituting her night time carer with provision of incontinence pads or absorbent sheets when the appellant is not in fact incontinent. The Supreme Court, by a majority of 4-1, dismissed the appeal. Inter alia, the appellant could not establish interference with her ECHR, art 8 rights. The respondent respected her dignity and autonomy, allowing her to choose the details of her care package. Even if art 8 interference were established, it would be justified under art 8(2) on the ground that it was necessary for the economic well-being of the local authority and proportionate. The appellant failed to show that the respondent’s decision could properly be characterised as a “practice, policy or procedure” and thus the respondent did not breach its duty under the DDA Act 1995, s 21. Even if that were not so, the respondent’s acts would have been justified as constituting “a proportionate means of achieving a legitimate aim” within the meaning of s 21D(5).

Lady Hale would have allowed Ms McDonald’s appeal on a different basis, namely that it was Wednesbury irrational for the respondent to characterise the appellant as having a need different from the one she in fact has. Under the Chronically Sick and Disabled Persons Act 1970, s 2(1) disabled people have a right to practical assistance from their local authority to meet their needs. In complying with s 2(1) the local authority has to answer rationally the following two questions: (i) what are the needs of the disabled person and (ii) what is necessary to meet those needs.

For judgment, please download: [2011] UKSC 33
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