European Court of Human Rights

FOURTH SECTION

Application no. 4241/12
Elaine MCDONALD
against the United Kingdom
lodged on 5 January 2012

STATEMENT OF FACTS

The applicant, Ms Elaine McDonald, is a British national who was born in 1943 and lives in London. She is represented before the Court by Mr D. Joy and Ms C. Hauser of Disability Law Service, a non-governmental organisation based in London.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is a former ballerina, who was once the prima ballerina of Scottish Ballet. In September 1999 she suffered an incapacitating stroke leaving her with severely limited mobility. In April 2006 she fell heavily, breaking her hip in several places. She then suffered two further falls, both of which resulted in further hospitalisation.

The applicant also has a small and neurogenic bladder. As a result, she usually has to urinate some two to three times a night. On account of her mobility problems she is unable safely to access a toilet or commode unaided.

In March 2007, after the applicant’s third fall, she applied to the Independent Living Fund (“ILF”) for full day and night support. While the application was pending, she was provided with a care package by the local authority which included 70 hours per week of night-time care. The application to the ILF was ultimately unsuccessful as the applicant ceased to be eligible for funding when she turned sixty-five in 2008.

A local authority care plan dated 27 April 2007 indicated that the applicant needed “assistance with toileting, when it’s required during the night”. Likewise, the FACE Overview assessment which followed on 8 January 2008 noted that “Miss McDonald needs assistance to manage continence at night. Substantial need.”

However, the FACE Overview Assessment was subsequently amended to read “Miss McDonald needs assistance at night to use the commode. Moderate need.”

A further Needs Assessment was started on 19 February 2008 and signed off on 29 February 2008. It noted:

“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 using commode during the night. This is because Ms McDonald does not wish to use incontinence pads and sheets...

Summary of Needs Assessment

Ms McDonald needs assistance to use the commode at night. Substantial need.”

A further Needs Assessment signed off on 28 October 2008 concluded that “Miss McDonald needs assistance to use the commode at night. Substantial need.”

On 17 October 2008 a formal decision was taken to reduce the amount allocated for the applicant’s weekly care from GBP 703 to GBP 450. This figure appears to have been assessed on the basis that the applicant would be provided with incontinence pads in lieu of night-time care. This decision was taken at a meeting between the local authority and the applicant at the applicant’s home. She was formally notified of the decision by letter dated 21 November 2008. It noted that:

“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.”

On 22 December 2008 the applicant sought permission to apply for judicial review. The applicant submitted that the local authority was unreasonably and unlawfully failing to meet her assessed and eligible needs. She further submitted that the local authorities’ actions would cause her to suffer indignity which would amount to an interference with her right to respect for her private life in breach of Article 8 of the Convention.

Pending judicial consideration of the applicant’s complaints, a “holding compromise” was reached whereby the local authority continued to fund a night-time carer four nights per week while the applicant’s partner stayed with her the other three nights to provide her with support.

On 5 March 2009 the application was refused by a Deputy High Court Judge. Although the judge accepted that the local authority was obliged to meet the applicant’s assessed need, she found that the assessed need was not “assistance to use the commode at night” but rather ensuring the applicant’s safety. The judge considered there to be two ways to meet that need: the provision of a night-time carer or the provision of incontinence pads. The statutory scheme requiring that the applicant’s needs be met allowed the local authority some flexibility about how that was to be done and the local authority was therefore quite entitled to meet the need in the most economic manner. The judge further considered the applicant’s complaints under Article 8 of the Convention to be “parasitic” upon the first ground being established and did not, therefore, consider that they raised any issues which needed to be gone into.

Following that decision, the local authority carried out a Care Plan Review. The review, which was dated 4 November 2009, concluded that

“It remains Social Service’s view that the use of incontinence pads is a practical and appropriate solution to Ms McDonald’s night-time toileting needs. There does not seem to be any reason why this planned reduction to provide care should not go ahead...”

After a visit to the applicant’s home on 15 April 2010, a further Care Plan Review was conducted. It was noted that “Ms McDonald did not want to discuss the option of using incontinence pads or Kylie sheets as a way of meeting her toileting needs”. The Review concluded:

“I remain of the opinion that Ms McDonald’s need to be kept safe from falling and injuring herself can be met by the provision of equipment (pads and/or absorbent sheets). She has however consistently refused this option. I am aware that she considers pads and/or sheets to be an affront to her dignity. Other service users have held similar views when such measures were initially suggested but once they have tried them, and been provided with support in using them, they have realised that the pads/sheets improve the quality of life by protecting them from harm and allowing a degree of privacy and independence in circumstances which, as the result of health problems, are less that ideal. The practicalities can be managed within the existing care package to accommodate Ms McDonald’s preferred bedtime and to allow her to be bathed in the morning and/or have sheets changed. If Ms McDonald were willing to try this option, she might similarly alter her views.

... ... ...

In light of her entrenched position on this, and despite the council’s view that pads and/or sheets are the best way to ensure Ms McDonald’s safety, consideration has been given to Extra Care Sheltered Housing as a means by which Ms McDonald could continue to receive support throughout the day and night. This would be consistent with her wish to receive personal care and also remain living independently in the community. It is not the recommended option because being assisted to access the toilet at night carries a risk of falls, but has been explored because of the impasse as regards the use of pads. Such accommodation will make support available 24 hours a day and reduce any longer term need to provide residential care to Ms McDonald should her needs increase in future. Ms McDonald refused this option when it was discussed with her.”

The applicant applied to the Court of Appeal for permission to appeal against the refusal of permission to apply for judicial review on the grounds first, that the reduction in funding was inconsistent with the assessment of her night-time needs; secondly, that the reduction in funding violated her rights under Article 8 of the Convention; thirdly, that in reducing her funding the local authority had failed to comply with its obligations under the Disability Discrimination Act 1995. In particular, she argued that if forced to use incontinence pads, she would “lose all sense of dignity” and, as a consequence, she would suffer considerable distress. The local authority submitted that the provision of a night-time carer would cost GBP 22,270 per year, which would have to be paid out of the adult social care budget from which all other community care services for adults in the applicant’s borough were funded. The local authority also argued that the use of pads would ensure the applicant’s safety and provide her with greater privacy and independence in her own home. Finally, the local authority submitted that the weekly funding of GBP 450 could be used according to the applicant’s preferences. She could therefore pay for a bedtime visit for the purpose of fitting the pads, and even a subsequent visit if necessary.

Upon the applicant’s application for permission to appeal, a single Lord Justice granted permission and directed that the claim for judicial review should be heard by the Court of Appeal. In a decision dated 13 October 2010, the Court of Appeal departed from the judgment of the Administrative Court insofar as it did not consider that it was appropriate for the courts to re-categorise the applicant’s needs as assessed by the local authority. It therefore found that between 21 November 2008 (the date of the disputed decision letter) and 4 November 2009 (the date of its first care plan review) the applicant’s assessed need had been for assistance to use a commode. In failing to provide such assistance, the local authority had been in breach of its statutory duty but it had mitigated the breach by entering into an arrangement with the applicant’s partner. On 4 November 2009 the local authority had effectively reassessed the applicant’s needs as no longer including assistance to use the commode at night. Following the reassessment, the local authority was no longer in breach of its duty in failing to provide such assistance.

With regard to the complaint under Article 8 of the Convention, the Court of Appeal found that the conditions for finding a breach had not been established. Even though the local authority had failed in its duty at the time of its November 2008 decision, the error was not born of any lack of respect for the applicant’s dignity but of a concern to perform the difficult task of balancing its desire to assist the applicant with its responsibilities to all its clients within the limited resources available to it.

Finally, the court held that there had been no failure to comply with any obligations under the Disability Discrimination Act 1995.

The applicant was granted permission to appeal to the Supreme Court. By a majority, the Supreme Court agreed with the Court of Appeal that the applicant’s needs had been reassessed on 4 November 2009, as the local authority had been entitled to do; that there had been no interference with the applicant’s rights under Article 8 of the Convention; and that there had been no failure to comply with the Disability Discrimination Act 1995.

With regard to the complaint under Article 8, Lord Brown observed:

“There is, of course, a positive obligation under Article 8 to respect a person’s private life. But it cannot possibly be argued that such respect was not afforded here. As already indicated, the respondents went to great lengths both to consult the appellant and [her partner] about the appellant’s needs and the possible ways of meeting them and to try to reach agreement with her upon them. In doing so they 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. These matters are all fully covered in paras 5, 42 and 66 of Rix LJ’s judgment below. Like him, I too have the greatest sympathy for the appellant’s misfortunes and a real understanding of her deepest antipathy towards using incontinence pads. But I also share Rix LJ’s view that the appellant cannot establish an interference here by the respondents with her Article 8 rights. I add only that, even if such an interference were established, it would be clearly justified under Article 8(2) – save, of course, for the period prior to the 2009 review when the respondent’s proposed care provision was not ‘in accordance with the law’ – on the grounds that it is necessary for the economic well-being of the respondents and the interests of their other service-users and is a proportionate response to the appellant’s needs because it affords her the maximum protection from injury, greater privacy and independence, and results in a substantial costs saving.”

In her dissenting opinion, Lady Hale considered that the need for help to get to the lavatory or commode was so different from the need for protection from uncontrollable bodily functions that it was irrational to confuse the two and to meet the need for one in a manner appropriate for the other. She would therefore have allowed the appeal.

B.  Relevant domestic law and practice

Section 47 of the National Health Service and Community Care Act 1990 (“the 1990 Act”) provides that:

“1)  Subject to subsections (5) and (6) below, 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 and to subsection (7) below, it shall be carried out in such manner and take such form as the local authority consider appropriate.”

Disabled persons also have an individual right to certain services under section 2(1) of the Chronically Sick and Disabled Persons Act 1970 (“the 1970 Act”), which reads as follows:

“Where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely—

(a)  the provision of practical assistance for that person in his home;

... ... ...

then, ... it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29.”

It was decided by the House of Lords in R v Gloucestershire County Council Ex p Barry [1997] AC 584 (by a majority of three to two) that “need” was a relative concept and that needs for services could not 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 could not be decided in a vacuum from which all other considerations of cost had been expelled. Consequently, the position subsequently established was that the local authority was under a duty to make an assessment of needs under section 47(1)(a) of the 1990 Act and in doing so might take account of its resources. If the need fell into one of the four bands described in the Fair Access to Care Services (“FACS”) Guidance (critical, substantial, moderate or low) – which, having regard to its resources, the local authority had indicated it would meet – then it had to meet that need. In deciding how to meet the need, the local authority was entitled to take account of its resources.

The FACS Guidance issued on 1 January 2003 (which remained in force until new guidance was issued in February 2010) provided, as relevant, that: councils should ensure that individuals in similar circumstances receive services capable of achieving broadly similar outcomes; reviews should be undertaken at regular intervals to ensure that the care provided to individuals is still required and is achieving the agreed outcomes; and that reviews should establish how far the services provided have achieved the outcomes set out in the care plan, reassess the needs and circumstances of individual service users, help determine individuals’ continued eligibility for support, and confirm or amend the current care plan.

COMPLAINTS

The applicant complained under Article 8 of the Convention that the withdrawal of the night-time care service disproportionately interfered with her right to respect for her private life. In the alternative, she complained that by withdrawing the service the respondent State was in breach of its positive obligation to provide her with a service which enabled her to live with dignity.

QUESTIONS TO THE PARTIES