Dancer's case fails to fly

Elaine McDonald, who has had limited mobility since suffering a stroke in 1999, previously had a carer to help her use a commode at night. However, Kensington and Chelsea Council withdrew this service in November when it reviewed her care plan. Instead, the council offered her incontinence pads, although she is not incontinent.

McDonald, who once danced lead roles with Scottish Ballet, brought a legal challenge, claiming the council’s decision was an unjustified interference with her Art 8 rights and breached its duties under the Disability Discrimination Act 1995 (DDA 1995).

However, the Supreme Court held by a 4-1 majority that the council acted lawfully.

Giving the lead judgment in R (on the application of McDonald) v Royal Borough of Kensington and Chelsea [2011] UKSC 33, Lord Brown said: “[The council] sought to respect as far as possible her personal feelings and desires, at the same time taking account of her safety, her independence and their own responsibilities towards all their other clients. They respected the appellant's human dignity and autonomy, allowing her to choose the details of her care package within their overall assessment of her needs: for example, the particular hours of care attendance, whether to receive direct payments in order to employ her own care assistant, and the possibility of other options like extra care sheltered housing.”

No interference with Art 8 could be established, he said, and if it were then it would be “clearly justified” under Art 8(2) on the grounds it is necessary for the economic wellbeing of the council and in the interests of their other service users.

He said it was “hopeless” to argue a breach of s 21 of the DDA 1995 since the council’s decision could not be characterised as a “practice, policy or procedure”.

Dissenting, Lady Hale said the case raised “an important point of law on the proper interpretation and application of s 2(1) of the Chronically Sick and Disabled Persons Act 1970”, but that “unfortunately the parties have not addressed themselves to this point”.

She said: “Logically, the decision of the majority in this case would entitle a local authority to withdraw this help even though the client needed to defecate during the night and thus might be left lying in her faeces until the carers came in the morning.

“This is not Ms McDonald’s problem at the moment, but her evidence leaves one in no doubt that this is one of her fears. Indeed, the majority view would also entitle an authority to withdraw this help during the day.

“The only constraint would be how frequently (or rather how infrequently) it was deemed necessary to change the pads or sheets, consistently with the avoidance of infection and other hazards such as nappy rash. The consequences do not bear thinking about.”

Lady Hale said she agreed with Age UK that it was “irrational in the classic Wednesdbury sense” to assess McDonald as having a different need from the one she had.

Age UK, which intervened in the case, said the ruling could have devastating consequences for thousands of older people if other councils took similar decisions.

Michelle Mitchell, the charity’s director, said: “This judgment opens the door to warehousing older people in their own homes without regard to their quality of life.”

Alex Rook of Irwin Mitchell solicitors, who represented Age UK, said: “Whilst Age UK is acutely aware of the current difficult economic climate, the right balance must be struck between the rights of the individual and the interests of the community, and Age UK continues to find it difficult to understand how it can be rational or reasonable to expect an older continent person to use incontinence pads rather than to assist them to access a toilet.”

Councillor Fiona Buxton, Kensington and Chelsea Council’s cabinet member for adult social care, said: “We understood that this resident had a strong preference for a night-time carer; however the cost of providing personal care of this kind in this case would have been prohibitive and would compromise our ability to look after other vulnerable residents.”