9.101McDonald v United Kingdom (2014) 17 CCLR 187, ECtHR
It was not a breach of the ECHR for the local authority to re-assess a person’s needs and provide them with considerably less than previously, in this case, by providing incontinence pads and absorbent sheets in place of a night-time carer and commode
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 European Court of Human Rights held that Kensington & Chelsea’s decision to withdraw its initial provision of night-time care amounted to an interference with Ms McDonald’s private life (rather than a failure to make positive provision) and that its initial withdrawal was incompatible with Article 8 ECHR because (as the Supreme Court also held, see
9.95 above), Kensington & Chelsea had not been acting lawfully in national law, since Ms McDonald’s assessment had not changed. However, once Kensington & Chelsea had re-assessed Ms McDonald’s needs, its decision to provide only continence aids was compatible with Article 8 ECHR, in the light of ‘the wide margin of appreciation afforded to States in issues of general policy, including social, economic and health care policies’ (paragraph 54) – indeed, this aspect of the case was ‘manifestly ill founded’ (paragraph 58):
57. The Court is satisfied that the national courts adequately balanced the applicant’s personal interests against the more general interest of the competent public authority in carrying out its social responsibility of provision of care to the community at large. It cannot, therefore, agree with the applicant that there has been no proper proportionality assessment at domestic level and that any reliance by it on the margin of appreciation would deprive her of such an assessment at any level of jurisdiction. In such cases, it is not for this Court to substitute its own assessment of the merits of the contested measure (including, in particular, its own assessment of the factual details of proportionality) for that of the competent national authorities (notably the courts) unless there are shown to be compelling reasons for doing so (see, for example, X v Latvia [GC], Application no 27853/09, para 102, ECHR 2013). The present applicant has not adduced any such compelling reasons in her pleadings before this Court.
Comment: as this case exemplifies, typically the European Court of Human Rights is reluctant to interfere with social welfare/resource allocation decisions (unless some additional element is present, such as discrimination). Its approach is inevitably coloured, to some extent, by its status as a supra-national court, but in practice, courts in the UK afford public authorities just as much margin of judgment in such cases, as the decision of the Supreme Court in the McDonald case illustrates. The approach of the ECtHR is unsurprising given that its rulings of legal principle must apply throughout 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. The approach of national courts in the UK turns on how they perceive their role, constitutionally: staunch protectors of core rights, such as the right to liberty and freedom from similar, serious wrongs perpetrated by the State; but engaging only with the legal parameters of socio-economic decisions, on the basis that the substantive judgment in such cases is for elected persons to take on a political basis.