9.95R (McDonald) v Kensington & Chelsea RLBC [2011] UKSC 33, (2011) 14 CCLR 341
The local authority was entitled to withdraw the provision of an overnight carer who helped the appellant access the commode at night, when it assessed that the appellant’s needs could be equally met by the provision of incontinence pads and absorbent sheets
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 had been entitled to review Ms McDonald’s care needs, which included the means by which those needs were to be met, as including a need for incontinence pads and absorbent sheets rather than for a commode and a night-time carer; the process had complied with guidance and been fair;
(ii)Kensington had not interfered with Ms McDonald’s rights under Article 8 ECHR because the process had respected her dignity and autonomy but, in any event, any interference would be justified by economic considerations;
(iii)the review did not amount to a ‘practice, policy or procedure’ for the purposes of section 21 of the Disability Discrimination Act 1995 and, in any event, even if it had done, the review had been ‘a proportionate means of achieving a legitimate aim’ for the purposes of section 21D(5);
(iv)it would be ‘absurd’ to infer that Kensington had breached the disability equality duty at section 49A of the Disability Discrimination Act 1995 simply because it failed explicitly to refer to that duty, in a context where its whole focus was on the needs of disabled person and countervailing resources considerations.
Comment: see
McDonald v United Kingdom, below para
9.101, which shows that the European Court of Human Rights is, if anything, even less likely to intervene in local authority judgments about what needs individuals have and how to meet them most appropriately, out of limited budgets. The approach or the ECtHR is not surprising given that its rulings of legal principle must apply throughout the Council of Europe States (of varying degrees of affluence) whilst it cannot hope to gain the detailed understanding of local economic and social factors that national institutions have.