Background
This appeal concerns the question of whether the Royal Borough acted unlawfully in seeking to amend Ms McDonald’s care package by substituting her night time carer with provision of incontinence pads or absorbent sheets when Ms McDonald was not in fact incontinent.
This case shows how cruel ill health can be. Some 30 years ago Ms McDonald was the prima ballerina of Scottish Ballet. In 1999 Ms McDonald suffered a stroke leaving her with severely limited mobility. She also suffers from a small and neurogenic bladder which means she has to urinate two or three times a night. Up until now she has dealt with this by using a commode with the help of a carer provided by the Royal Borough as part of her care package.
In November 2008 the Royal Borough proposed instead that the appellant should use pads, avoiding the need for a night-time carer. The Royal Borough argued that this would provide Ms McDonald with greater safety (preventing the risk of injury whilst she is assisted to the commode), independence and privacy and in addition reducing the cost of her care by some £22,000 per annum. Ms McDonald’s care plan was reviewed in November 2009 and April 2010.
Ms McDonald seeks to challenge this proposal. Ms McDonald maintains that the thought of being treated as incontinent (which she is not) and having to use pads is an intolerable affront to her dignity.
Earlier judgments
The High Court dismissed Ms McDonald’s arguments and held that it was open to the Royal Borough to meet Ms McDonald’s need, identified in her needs assessment as “assistance to use the commode at night”, in a more economical manner by the provision of pads.
The Court of Appeal disagreed holding that the clear language of Ms McDonald’s needs assessment could not be extended in a way proposed by the High Court and at the time proceedings were commenced the Royal Borough was in breach of its statutory duty. However, as the Royal Borough did not implement the proposal outlined above and had reassessed Ms McDonald’s care plan Ms McDonald had no substantial complaint.
Supreme Court judgment
By a majority of 4-1 Ms McDonald’s appeal was dismissed.
Reasoning
Ms McDonald put forward four arguments (The Supreme Court’s reasoning is outlined below each heading):
1. The care plan reviews did not in fact contain a reassessment of her needs
In accordance with the “Fair Access to Care Services” guidance issued by the Secretary of State, the care review plans could and did in fact incorporate a review of Ms McDonald’s needs. Care plan reviews are usually drafted by social workers and not lawyers and thus should be construed in a practical way.
2. The decision breached Ms McDonald’s rights under article 8 of the European Convention of Human Rights
Ms McDonald had not established interference with her article 8 rights. However, even if article 8 interference was established, it would be justified under article 8(2) on the ground that it is (a) necessary for the economic well-being of the Royal Borough and the interests of other service-users and (b) a proportionate response to Ms McDonald’s needs by affording her greater privacy and protection from injury.
3. The decision was taken in breach of section 21 of the Disability Discrimination Act 1995
Under section 21 the Royal Borough 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. Ms McDonald failed to show that the Royal Borough’s decision could properly be characterised as “practice, policy or procedure” and thus the Royal Borough did not breach its second 21 duty. Even if that were not so, the Royal Borough’s acts would have been justified as constituting “a proportionate means of achieving a legitimate aim” within the mean of section 21D(5) of the 1995 Act.
4. The Royal Borough failed to have due regard to the need to promote equality of opportunity of disabled persons under section 49A of the Disability Discrimination Act 1995 (now superseded by comparable provisions in the Equality Act 2010)
Where the Royal Borough 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 1995 Act. It would be absurd on the facts of the present case to infer a breach of section 49A from an omission to refer to that section in any of the Royal Borough’s documentation.
Dissenting opinion
The dissenting Justice would have allowed Ms McDonald’s appeal on a different basis outlined by Age UK in its intervention, namely that it was irrational for the Royal Borough to characterise Ms McDonald as having a need different from one she in fact has.
A full report of the decision is available from the Supreme Court here.
