R (Elaine McDonald) v Kensington & Chelsea Royal London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD KERR,LADY HALE,LORD BROWN,LORD DYSON,LORD WALKER |
| Judgment Date | 06 July 2011 |
| Neutral Citation | [2011] UKSC 33 |
| Date | 06 July 2011 |
| Court | Supreme Court |
[2011] UKSC 33
Lord Walker
Lady Hale
Lord Brown
Lord Kerr
Lord Dyson
(on the application of McDonald)
Appellant
Stephen Cragg
Stephen Broach
(Instructed by Disability Law Service)
Intervener (Age UK)
Ian Wise QC
(Instructed by Irwin Mitchell LLP)
Respondent
Kelvin Rutledge
Sian Davies
(Instructed by Royal Borough of Kensington and Chelsea Legal Services)
Introduction
Ill health can be dreadfully cruel. Some 30 years ago the appellant was the prima ballerina of Scottish Ballet. Alas, in September 1999 (then aged 56) she suffered an incapacitating stroke leaving her with severely limited mobility and other disabilities besides. In April 2006 she fell heavily and broke her hip in several places, remaining in hospital for four months. She then suffered two further falls each leading to further hospitalisation. The problem at the centre of these proceedings, however, is that the appellant suffers also from a small and neurogenic bladder which makes her have to urinate some two to three times a night. Up to now she has dealt with this by accessing a commode with the help of a carer provided by the respondent Royal Borough as part of a package of care services to ensure her safety. For some years past, however, the respondents have been proposing instead that the appellant should use incontinence pads or special sheeting (hereafter "pads") which would avoid the need for a night-time carer. The respondents say that this would provide the appellant with greater safety (avoiding the risk of injury whilst she is assisted to the commode), independence and privacy, besides reducing the cost of her care by some £22,000 per annum. The appellant, however, is appalled at the thought of being treated as incontinent (which she is not) and having to use pads. She considers this an intolerable affront to her dignity. Whether night-time care can be provided on this revised basis is the critical issue in these proceedings.
The history of the proceedings
The respondents' decision to reduce the sum allocated to the appellant's weekly care was communicated by letter dated 21 November 2008 and was sought to be challenged by the appellant's judicial review application made on 22 December 2008. The application came before Frances Patterson QC sitting as a Deputy High Court Judge in the Administrative Court on 5 March 2009 at a "rolled up hearing" (the application for permission and substantive inter-partes hearing being dealt with together), at the end of which permission was refused. A Needs Assessment dated 2 July 2008, completed on 28 October 2008, on which the impugned decision had been based, had described the appellant's needs as "assistance to use the commode at night" and the deputy Judge resolved in the respondent's favour what she described as the "very narrow" issue arising, namely whether that need fell to be read literally or whether, as the respondents contended, it was permissible to examine its underlying rationale and treat it as a need for safe urination at night. Given that it was the latter, the deputy judge held that it was open to the respondents to meet that need in the more economical manner, ie by the provision of pads. Article 8 of the European Convention on Human Rights had also been invoked, but not as a freestanding ground of challenge.
Permission to apply for judicial review having thereafter been granted by a single Lord Justice, and the case reserved to the Court of Appeal, the substantive challenge came before Rix LJ, Wilson LJ and Sir David Keene on 29 April 2010. At the Court of Appeal hearing the arguments were expanded. The respondents sought to rely not only on their Needs Assessment of 2 July 2008 but additionally upon their subsequent Care Plan Reviews of 4 November 2009 and 15 April 2010. The appellant for her part again sought to invoke article 8 (this time, submits Mr Cragg, wrongly understood by the Court to be again merely ancillary to the appellant's primary ground), and for the first time sought also to rely on section 21E of the Disability Discrimination Act 1995 ("the DDA 1995"), as inserted by section 2 of the Disability Discrimination Act 2005.
By their reserved judgment dated 13 October 2010 the Court of Appeal disagreed with the deputy judge that the Needs Assessment of 2 July 2008 could properly be understood as a need for the management of the appellant's night-time urination rather than (as the "deliberately chosen" language of the assessment put it: para 49) as "assistance to use the commode at night", so that, at the time when the proceedings were commenced, the Court of Appeal held the respondents to have been in breach of their statutory duty. But the court held that, since the December 2008 decision was not in fact put into operation, and since the need had been reassessed in the Care Plan Reviews of November 2009 and April 2010, the appellant had no substantial complaint. The court also rejected the appellant's claims under article 8 and under the DDA 1995. Rix LJ gave the only reasoned judgment: [2010] EWCA Civ 1109, (2010) 13 CCL Rep 664.
The issues before this Court
Four issues are identified by the parties as arising for decision on this appeal:
(1) Was the Court of Appeal correct to hold that the 2009 and 2010 Care Plan Reviews are to be read as including a reassessment of the appellant's community care needs?
(2) Did the respondents' decision to provide pads interfere with the appellant's article 8 rights and, if so, was such an interference justified and proportionate?
(3) Were the respondents operating any relevant policy or practice for the purposes of section 21E(1) of the DDA 1995 and, if so, was this policy justified as a proportionate means of achieving a legitimate aim, namely the equitable allocation of limited care resources?
(4) Have the respondents failed to have due regard to the needs specified in section 49A of the DDA 1995 ("the general disability equality duty") when carrying out their functions in this case? (The appellant needs the court's leave to raise this issue, permission to invoke section 49A having been refused by a single Lady Justice before the Court of Appeal hearing and not sought afresh from that court.)
Issue One – the 2009/2010 Care Plan Reviews
With regard to the first three issues – and, indeed, the entire framework of this appeal, both factual and legal – I really cannot hope to improve upon Rix LJ's judgment below. I could, of course, lengthen it: one can always do that. But I prefer instead to refer any interested reader to it and to confine myself to a substantially shorter summary of the reasons why for my part I agree with its conclusions. I cannot, however, escape a brief recitation of the main legal provisions governing care arrangements. I shall start with section 47 of the National Health Service and Community Care Act 1990 ("NHSCCA 1990") since it is common ground here that (i) the appellant is "substantially and permanently handicapped" within the meaning of section 29(1) of the National Assistance Act 1948 ("NAA 1948"), (ii) the respondents are required under that section to make arrangements for promoting her welfare, (iii) the respondents are satisfied that it is necessary in order to meet the appellant's needs to make arrangements for "the provision of practical assistance" for her in her own home within the meaning of section 2(1)(a) of the Chronically Sick and Disabled Persons Act 1970 ("CSDPA 1970"), and (iv) the respondents are accordingly pursuant to that section under a duty to make those arrangements, acting under the Secretary of State's general guidance issued pursuant to section 7(1) of the Local Authority Social Services Act 1970 ("LASSA 1970").
Section 47 of NHSCCA 1990 provides:
"(1) … where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority –
(a) shall carry out an assessment of his needs for those services; and
(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services….
"(4) The Secretary of State may give directions as to the manner in which an assessment under this section is to be carried out or the form it is to take but, subject to any such directions …, it shall be carried out in such manner and take such form as the local authority consider appropriate."
Before turning to the Secretary of State's guidance issued under section 7(1) of LASSA 1970 (the Fair Access to Care Services (FACS) Guidance) and directions issued under section 47(4) of NHSCCA 1990, I should say a word about the relevance of a local authority's social care resources both to the assessment of the handicapped person's needs and to the way in which such assessed needs may then be met. It was decided by the House of Lords in R v Gloucestershire County Council Exp Barry [1997] AC 584 (by a majority of three to two) that need within the meaning of section 2(1) of CSDPA 1970 is a relative concept and that "needs for services cannot sensibly be assessed without having some regard to the cost of providing them. A person's need for a particular type or level of service cannot be decided in a vacuum from which all considerations of cost have been expelled." (Lord Nicholls of Birkenhead, at p 604). The position now established is that the local authority are under a duty to make an assessment of needs under section 47(1)(a) of NHSCCA 1990 and in doing so may take account of their resources. Assuming, as in the present case, that the need falls into one of the four bands – "critical", "substantial", "moderate" or "low" as described in the FACS Guidance – which, having regard to their...
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