R (Elaine McDonald) v Kensington & Chelsea Royal London Borough Council
| Jurisdiction | England & Wales |
| Judgment Date | 05 March 2009 |
| Neutral Citation | [2009] EWHC 1582 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 March 2009 |
| Docket Number | CO/12350/2008 |
[2009] EWHC 1582 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Frances Patterson QC
(Sitting as a Deputy High Court Judge)
CO/12350/2008
Stephen Cragg (instructed by the Disability Law Service) appeared on behalf of the Claimant
Kelvin Rutledge (instructed by London Borough of Kensington and Chelsea) appeared on behalf of the Defendant
(Approved by the court)
THE DEPUTY HIGH COURT JUDGE: This is an application for permission and, if permission is granted a claim for judicial review, by the claimant, Elaine McDonald, a 65-year-old former principal ballerina with the Royal Ballet, against the decision on part of the defendant, London Borough of Kensington and Chelsea, to withdraw night-time care to the claimant and to limit her care package to £450 a week.
The claimant submits that in acting that way the defendant is failing to meet the defendant's assessed and eligible needs, and is acting unlawfully and unreasonably. Further, she submits that the defendant's action will cause her to suffer indignity which will amount to an interference with her right to respect for her private life and be in breach of Article 8 of the European Convention on Human Rights.
The factual background
Sadly the claimant suffered a stroke in September 1999, 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 the claimant will experience a freezing effect in her left foot and has experienced a number of falls. After her discharge from hospital, after the initial stroke, until 2006 the claimant's partner provided the majority of care for her, with supplemental services being provided by the defendant. In April 2006 the claimant had a severe fall at night, when she broke her hip in several places. She was admitted to hospital, where she contracted MRSA and clostridium difficile. She remained in hospital until August 2006.
On discharge, the claimant says that adequate night-time care was not put into place and, as a result, she fell again and was admitted to hospital a few days later. By that time the strain of providing care for the claimant became too much for her partner, Mr Donald McLeish, who was himself admitted to hospital. Upon his discharge from hospital in October 2006 he was rehoused and has lived apart from the claimant since then.
On 13th November 2006 the claimant, who by that time had been discharged from hospital, suffered a further fall at home at night and was again admitted to hospital. As part of her hospital discharge planning process, an application was made to the Independent Living Fund to obtain full day and night-time support for the claimant. The claimant was discharged from hospital on that occasion on 12th March 2007, with an interim care package, which included 70 hours of night-time care at 10 hours a night, from 10.00 pm until 8.00 am, by the defendant. That package was to be a short-term provision by the defendant whilst the Independent Living Fund application was resolved. In fact, on reaching the age of 65, the claimant was no longer eligible to receive funding from the Independent Living Fund.
On 19th February 2008 the defendant's older persons services carried out an assessment of need on the part of the claimant. Within that assessment, Ms McDonald's view was described as follows:
“Ms McDonald wanted to emphasise that she requires assistance with all transfers and when she mobilises. Ms McDonald requested night care in order [for] someone to assist her with using [the] commode during the night. This is because Ms McDonald does not wish to use incontinence pads and sheets.”
There was a summary of the needs assessment on that occasion. Two points are relevant. The first is that it was recorded that Ms McDonald needs supervision when transferring—that was a substantial need—and the second is that Ms McDonald needs assistance to use the commode at night. Again, that was a substantial need.
Within the “physical well-being” section of the assessment it was recorded that Ms McDonald's GP, Dr Parameshwaran, reports that Ms McDonald has a neurogenic bladder. This condition can cause either retention of urine or frequency of urine. Ms McDonald experiences frequency of urine.
In terms of the psychological well-being, the February 2008 assessment recorded that Ms McDonald's sleep was interrupted as she needed to use the commode at night. This was due to having a small bladder and frequent urinary tract infections. Ms McDonald reported that she had to use the commode about three times at night.
Within the overall impact of current needs the following was set out:
“Ms McDonald needs supervision to walk to the toilet.
Ms McDonald can maintain her independence, reduce the risks of falls and avoid the use of incontinence pads if the carers arrive on time.”
Towards the end of that assessment there was a summary of the key problems/needs, the seventh of which was “Ms McDonald needs assistance at night to use the commode”, which was described as being a moderate need.
A further needs assessment commenced on 2nd July 2008, and was signed off on 28th October 2008. Within that document, in terms of the summary of needs assessment, it was noted, first, that Ms McDonald needs supervision when transferring, which was a substantial need and, secondly, that Ms McDonald needs assistance to use the commode at night, which was also described as a substantial need. In terms of the assessment decision, it was recorded that Ms McDonald was eligible for services, following the assessment.
A meeting took place between the claimant and the defendant on 17th October 2008. At that meeting, which was attended by a range of people, including Ms McDonald, her former partner and an advocate on her behalf, there was a discussion about her needs and during the meeting a copy of the needs assessment was distributed by Mr Brown, who was then employed as service manager on the part of the defendant.
In the minutes of the meeting it is recorded that an offer of some £450 a week was made to Ms McDonald for an independent budget, but that was from the previous assessment. It was further noted that the amount had not been confirmed because it was based on a previous assessment. Therefore, it was not regarded as a final figure, although Mr Brown was clear that it acknowledged that there was some funding for night-time care. At that meeting the claimant was informed that, in terms of her night-time care, that was proposed to be reduced.
On 17th November 2008 the defendant produced a care plan for the claimant. Within that care plan, the needs for which had been assessed as part of the comprehensive needs assessment it was set out that Ms McDonald needed assistance to use the commode at night, and that that was a substantial need. So, too, was set out the weekly cost of home care provision at the sum of £703.59.
On that day the defendant sent an e-mail to the claimant saying that it would begin to reduce her night-time care as from 21st November 2008. That was followed by a letter dated 21st November 2008, from the defendant, which repeated the advice at the meeting, which was that the amount allocated to her care would be £450 a week and continued:
“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 the use of public resources.”
Later on in that letter the following was set out:
“This planned reduction is being initiated by us in the manner proposed only because you have not been forthcoming in offering alternative suggestions.”
As a result of that a pre-action protocol letter was sent to the defendant on 27th November 2008. The defendant responded on the following day.
Within the letter responding, the Council made it clear that it was relying upon the Community Care Act assessment conducted on the 2nd July 2008, to which I have referred earlier; and that it was basing its services to meet the currently assessed level of need upon that needs assessment.
On 3rd December 2008 the night care scheme was withdrawn for 4 nights during the week by the defendant so that the current position is that the claimant continues to receive 3 nights' night-time care from the defendant.
The legal framework
So far as the legal framework is concerned, this is not in dispute between the parties. Section 47 of the National Health Service and Community Care Act creates a statutory duty on local authorities to assess those who appear to be in need of community care services. Under section 47(1)(a) of that Act local authorities must carry out an assessment wherever there is an appearance of need. Under section 47(1)(b) local authority services must make a service provision decision to meet a need once assessed.
So far as community care services are concerned, which a local authority can provide to meet the needs assessed under section 47 of the Act, they are defined by section 46(3) as including services provided under Part III of the National Assistance Act 1948. There is a duty on local authorities, under section 29 of the National Assistance Act...
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