R (Elaine McDonald) v Kensington & Chelsea Royal London Borough Council
| Jurisdiction | England & Wales |
| Judgment Date | 13 October 2010 |
| Neutral Citation | [2010] EWCA Civ 1109 |
| Docket Number | Case No: C1/2009/0509 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 October 2010 |
[2010] EWCA Civ 1109
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
Frances Patterson QC
(Sitting as a Deputy High Court Judge)
Before: Lord Justice Rix
Lord Justice Wilson
and
Sir David Keene
Case No: C1/2009/0509
Mr Stephen Cragg and Mr Stephen Broach (instructed by Disability Law Service) for the Claimant
Mr Kelvin Rutledge and Miss Sian Davies (instructed by Royal Borough of Kensington & Chelsea) for the Defendant
Hearing dates: 29 th April 2010
Lord Justice Rix:
Introduction
Ms Elaine McDonald, the claimant in these proceedings for judicial review, is now 67 years old. She was at one time a principal ballerina with the Scottish Ballet. She lives in a flat in London SW5, in the Royal Borough of Kensington and Chelsea (the “Royal Borough”). In September 1999, Ms McDonald sadly suffered a stroke, which left her incapacitated, with reduced mobility and strength on the left side of her body. She wears a fitted splint on her left leg and foot and uses a wheelchair when outside her home. When walking she can experience a freezing effect in her left foot and has suffered a number of falls. She has had the assistance of her partner, Mr Donald McLeish, who has provided the majority of care for her in the past at any rate up to 2006, but he is not in such good health as he was and does not wish to be regarded as her carer. In April 2006 Ms McDonald suffered a severe fall at night and broke her hip in several places. She remained in hospital until August 2006. There was a second fall leading to a further hospitalisation soon after, and then a third fall and third hospitalisation. Although she receives a package of care from the Royal Borough in order to cover her assessed needs both during the day and at night, the dispute which has led to these proceedings concerns an important and distressing, but narrow, issue about night-time urination.
Ms McDonald suffers from a small and neurogenic bladder, the consequence of which is a need to urinate some three times during the night. She has up to now done so by accessing a commode with the help of a carer. That help is necessary to ensure Ms McDonald's safety, so as to prevent falls. The dispute which has divided the parties is that Ms McDonald wishes to continue to use a commode for night-time urination, as she has done in the past, whereas the Royal Borough has sought to persuade her to use incontinence pads or special sheeting which would make it unnecessary to access a commode and would make a night-time carer redundant, either wholly or in large part. However, Ms McDonald has adamantly refused to consider the use of such devices, to which I shall refer as “pads”. She says, correctly, that she is not incontinent (although people in her situation are often referred to as “functionally incontinent”). She has a horror of the use of such pads, which she considers as an affront to her dignity. She has expressed herself in strong terms about her concerns.
In legal terms, and in a nutshell, the primary issue is whether the assessed need is a need for “assistance at night to use the commode”, which is how the matter is expressed in a Needs Assessment started on 2 July 2008 and signed off on 28 October 2008 (the “July 2008 needs assessment”), or is more properly expressed, by reference to the underlying rationale of Ms McDonald's situation, as a need to urinate safely at night, which was the Royal Borough's submission accepted by Frances Patterson QC, sitting as a deputy high court judge in the Administrative Court, in her judgment below.
The significance of that issue is this: if the assessed need is to use the commode, then the Royal Borough is at law bound by its statutory duty to meet that need irrespective of its cost and the impact such cost may have on its resources. Although the Royal Borough would in general be entitled to have regard to resources in determining how to meet needs, nevertheless having defined Ms McDonald's need in such a specific way, it would be required to assist her to use her commode at night, and that would require a night-time carer to assist her to access her commode. If, however, the proper view of the assessed need is more generally in terms of safe urination at night, then the Royal Borough would be entitled to have regard to resources as to how that need might be met, and it would be entitled, subject to some further arguments raised on behalf of Ms McDonald concerning article 8 of the European Convention on Human Rights (the “ECHR”) and the Disability Discrimination Act 1995 (the “ DDA 1995”), to decide, as it has, that a reasonable and adequate solution is the use of pads.
The decision of the Royal Borough which has been challenged in these proceedings is the decision made at a meeting in Ms McDonald's home on 17 October 2008 and formally recorded in a letter from the Royal Borough to Ms McDonald dated 21 November 2008 to reduce the amount allocated to Ms McDonald's weekly care from the former £703 to a new figure of £450 per week. The former figure paid for a night-time carer for 10 hours a night (between 10 pm and 8 am) seven nights a week (as well as for Ms McDonald's day-time care, which is not in issue). The latter figure appears to have been assessed on the basis of £375 for day-time care, and £75 for the provision of pads at night (and possibly for some night-time assistance in the fitting of them, but I am unsure of that). It would seem however that the Royal Borough was willing for Ms McDonald to choose for herself exactly how she would wish the allocated total sum to be used on her day and night care. Thus it would be possible for a carer to be available to fit the pads at about 10 pm at night, if so desired.
The Royal Borough's letter reads in part:
“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.”
The letter went on to observe that the Royal Borough had hoped that Ms McDonald would respond to the request made at the 17 October meeting for her to identify how she would wish her care to be changed and the budgeted amount allocated. However, Ms McDonald had not responded, and therefore the letter stated that it was necessary for the new reduced care provision to start immediately.
That letter led to an almost immediate letter before action and to these proceedings, which were filed on 22 December 2008. In the event, the Royal Borough has not implemented its decision pending the resolution of these proceedings. A holding compromise has been reached whereby the Royal Council continues to fund a night-time carer for four nights per week, while on the other three nights, Ms McDonald's partner, Mr McLeish, stays with Ms McDonald to provide her with support for her continued use of the commode for night-time urination.
Ms Patterson QC's judgment refused the grant of permission to bring judicial review proceedings. The matter was dealt with before her as a “rolled up hearing”. As I have said, she regarded Ms McDonald's assessed need as the underlying need for safe urination at night. On that basis, she had no need to consider the article 8 point further, for it was agreed before her that it was not a freestanding point, but depended on the primary ground being established, that the Royal Borough was in breach of its duties under relevant welfare legislation (the “primary ground”). At that time there was no third point raised under the DDA 1995.
Upon Ms McDonald's application for permission to appeal, Laws LJ granted permission and directed that Ms McDonald's claim for judicial review should therefore be heard by this court. In the circumstances this is not formally an appeal, but a claim for judicial review for which permission has been granted.
The factual background
The above introduction states the essential issues and how they arise, but it is necessary to provide further information about the factual background.
Ms McDonald complains that, when she left hospital in August 2006, adequate night-time care was not put into place and that, as a result, she fell again and was re-admitted. By that time the strain of providing care for her was proving too much for Mr McLeish, who was himself admitted to hospital. He was discharged in October 2006, since when he has been rehoused and lives apart from Ms McDonald, although as I have said he has been spending three nights a week at her home pending the resolution of these proceedings.
During Ms McDonald's third hospitalisation, the Royal Borough drew up a Needs Assessment with a start date of 22 January 2007 and a signing off date of 9 February 2007. It records that her consultant neurologist thought that a night-time carer would be helpful “certainly in the initial phase following her discharge from hospital”. The Assessment contains a heading “History of Continence Management”, which states that “frequent toileting still appears to be the major issue…However Ms McDonald and her partner (Donald) refused to use incontinence pads…Management of Ms McDonald's incontinence has been discussed with both Ms McDonald and Donald (partner) on many occasions. However,...
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