6.16R (McDonald) v Kensington & Chelsea RLBC [2011] UKSC 33, (2011) 14 CCLR 341
It had been unnecessary explicitly to refer to the disability equality duty when undertaking a community care assessment and it could not be inferred that the disability equality duty had been disregarded
Facts: Ms McDonald had limited mobility and a small, neurogenic bladder, which caused her to have to urinate several times a night. Kensington initially provided Ms McDonald with a commode and a night-time carer. It then assessed her need using different language, as being for incontinence pads and absorbent sheets. Ms McDonald sought a judicial review.
Judgment: the Supreme Court (Walker, Hale, Brown, Kerr and Dyson JJSC, Hale JSC dissenting) held that (i) Kensington’s decision was not a practice, policy or procedure for the purposes of section 21 of the Disability Discrimination Act 1995 and even if it was, it was justified:
21. Mr Cragg’s argument under these provisions, if I understand it, is that, in substituting incontinence pads for a night-time carer to meet the appellant’s night-time toileting need, the respondents are manifesting or applying:
‘a practice, policy or procedure which makes it: (a) impossible or unreasonably difficult for disabled persons to receive any benefit that is or may be conferred, or (b) unreasonably adverse for disabled persons to experience being subjected to any detriment to which a person is or may be subjected, by the carrying-out of a function by the authority’
within the meaning of section 21E(1), so that, as provided by section 21E(2), it is their duty ‘to take such steps as it is reasonable, in all the circumstances of the case, for the authority to have to take in order to change that practice, policy or procedure so that it no longer has that effect’. If that be right, then, by virtue of section 21D(2)(a) and 21B(1), a failure to comply with that duty constitutes unlawful discrimination by the respondents against the appellant unless the respondents can show pursuant to section 21D(2)(b) that this failure is justified under section 21D(5), namely that its acts are ‘a proportionate means of achieving a legitimate aim’.
22. The argument to my mind is hopeless. In the first place I find it impossible to regard the respondents’ decision in this case as the manifestation or application of anything that can properly be characterised as a ‘practice, policy or procedure’ within the meaning of this legislation. Rather, in taking the impugned decision, the respondents were doing no more and no less than their statutory duty as fully described under issue one above. Secondly, even were that not so, it follows from all that I have already said (not least with respect to Article 8.2) that the respondents’ acts here must be regarded as constituting ‘a proportionate means of achieving a legitimate aim’ within the meaning of section 21D(5) (even assuming that there were otherwise steps which it would have been reasonable for them to take to change their practice, policy or procedure within the meaning of section 21E(2)). Here again, therefore, I agree with the views of the court below except only that, whereas Rix LJ was merely ‘sceptical as to whether any relevant policy or practice for the purposes of section 21E(1) exists in this case’ (para 73), I am clear that it does not.