This appeal (from the Court of Appeal [2010] EWCA Civ 1109) concerns whether the respondent council acted lawfully in reducing the amount of funding available to provide weekly care to Ms McDonald.


Ms McDonald suffered from a condition which required her to access a toilet three or more times a night.  Owing to her physical frailty (caused as a result of a stroke), such access had resulted in a number of falls some of which had necessitated her hospitalisation.

In July 2008, the council carried out a needs assessment which concluded that Ms McDonald required assistance to use a commode at night.  This need was categorised as “substantial”.  Prior to that assessment being approved, there had been intervening discussions at a meeting regarding the need to change Ms McDonald’s care to reflect her needs.  Nevertheless, the need identified in the July 2008 assessment was reiterated in a care plan in November 2008.  In a letter dated 21 November 2008, the council informed Ms McDonald that it intended to immediately cut the amount of funding available to Ms McDonald from £703 per week (which paid for a night-time carer to assist her in accessing a toilet safely) to £450 per week (which paid only for the provision of incontinence pads at night).  The letter went on to state that:

“As stated at the meeting, the rationale behind the planned reduction is that we consider the current provision to be in excess of that required to meet your eligible needs under the council’s Fair Access to Care Services criteria. The council has a duty to provide care, but we must do so in a way that shows regard for use of public resources.”

Ms McDonald refused to use such pads on the basis that it offended against her dignity.  She gave evidence that the council’s insistence on reducing the level of funding was causing her distress.

Ms McDonald applied for permission to judicially review the decision to reduce the amount of funding available to provide her care on the basis that the council’s approach was unlawful in light of the July 2008 needs assessment. The application also included a claim for damages under the Human Rights Act 1998 based on the assertion that the council’s breach of statutory duty also amounted to a breach of Ms McDonald’s art.8 rights under the European Convention on Human Rights 1950 (“ECHR”).  The council agreed to continue to provide night-time care four nights a week (with Ms McDonald’s partner assisting her for the remaining three nights) pending the outcome of the judicial review proceedings.

High Court decision

In a “rolled up” hearing on 5 March 2009, Frances Patterson QC refused to grant permission to bring judicial review proceedings. The judge exercised what she found to be the jurisdiction conferred by Kirklees Metropolitan Borough Council ex parte Daykin [1998] 1 CCLR 512 (“Kirklees”) (i.e. the ability to assess the need herself) and regarded Ms McDonald’s need as the underlying need for safe urination at night which could be met by the provision of pads. Consequently, the art.8 point was not considered as it was accepted by the parties that it did not form a freestanding argument, but depended on Ms McDonald establishing a breach of statutory duty.

Ms McDonald appealed to the Court of Appeal. Laws LJ granted permission and directed that Ms McDonald’s claim for judicial review should be heard by the Court of Appeal. In the circumstances the hearing was treated not as an appeal, but rather a claim for judicial review for which permission had been granted.  Ms McDonald included a claim for discrimination under the Disability Discrimination Act 1995 (as amended).

Prior to the Court of Appeal hearing, on 4 November 2009, the council carried out a care plan review which concluded that Ms McDonald’s night-time needs could be met appropriately by the provision of incontinence pads.  A further review was carried out in April 2010 which drew similar conclusions.

Court of Appeal decision

In the Court of Appeal (the panel comprising Rix, Wilson and Keene LJJ), the issues were:

a)     whether the council’s decision in their letter of 21 November 2008 was consistent with their assessment of Ms McDonald’s night-time need;

b)    whether, if not, Ms McDonald was entitled to damages for breach of ECHR, art 8; and

c)     whether the council had discriminated against Ms McDonald on grounds of her disability.

Breach of statutory duty

Lord Justice Rix gave the only judgment (with which the other Lordships agreed).  He found that Ms Patterson QC had erred in making her own assessment of Ms McDonald’s needs.  The decision in Kirklees was only authority for the proposition that a judge could assess needs where (as in that case) there had been a failure on the part of a local authority to do so.  In this case, the needs had been assessed in the July 2008 assessment with which the court could not interfere.  His Lordship went on to hold that from July 2008 until the care review plan dated 4 November 2009, the council had acted unlawfully in failing to meet Ms McDonald’s assessed need of the provision of night-time care to assist her in using a commode.

His Lordship found that the precise form of words in the July 2008 needs assessment (i.e. the need for assistance in accessing a commode at night) meant the council were in breach of its statutory duty insofar as they indicated they would not provide that assistance.  Nonetheless, by the time the care reviews were carried out in 2009 and 2010, Ms McDonald’s needs had been reassessed as a need to manage night-time urination in safety.  His Lordship considered that the care reviews included a lawful reassessment of Ms McDonald’s needs for this purpose and consequently that the council was no longer in breach of its statutory duty after 4 November 2009.

ECHR, art 8

Having found the council in breach of its statutory duty during the abovementioned period, Rix LJ went on to consider whether there had been a breach of ECHR, art 8 and discrimination on the grounds of disability.  In respect of the former, his Lordship referred inter alia to the decisions in Sentges v. The Netherlands (App No 27677/02), and Anufrijeva v Southwark London Borough Council [2003] EWCA Civ 1406, [2004] QB 1124, and concluded that whilst art 8 was engaged, there had been no breach because:

a)     the interference was not sufficiently serious (being for a period of one year and interim measures had been put in place pending the conclusion of the appeal); and

b)    the breach of statutory duty was born of error rather than a lack of respect for Ms McDonald’s art.8 rights. The council had sought to balance their desire to assist Ms McDonald with their duties to other clients in the context of limited resources.

Lord Justice Rix therefore dismissed the claim for breach of ECHR, art 8

Disability discrimination

As for the claim based on disability discrimination, this was rejected on the basis that the combination of ss 21B(1), 21D(1) and 21E(2) did not assist Ms McDonald in circumstances where the court was sceptical as to whether the council had a practice or policy which fell within the ambit of s 21E(2) and the actions were capable of justification under s 21D in any event.
Ms McDonald has appealed to the Supreme Court, raising the following issues:

(1) whether the council’s care plan reviews constituted lawful needs assessments;
(2) whether the council violated Ms McDonald’s art 8 rights; and
(3) whether the council discriminated against Ms McDonald on grounds of her disability.

The outcome of this appeal has the potential to impact severely on the allocation of resources by local authorities at a time of significant pressure.  It will be interesting to see the approach adopted by the Supreme Court to the question of the lawfulness of the care plan reviews and whether it takes a modified approach to the scope of art 8 in the context of welfare benefit provision.