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)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WILSON
SIR DAVID KEENE
| The Queen on the application of Elaine McDonald
|- and -
|Royal Borough of Kensington and Chelsea
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Mr Kelvin Rutledge and Miss Sian Davies (instructed by Royal Borough of Kensington & Chelsea) for the Defendant
Hearing dates : 29th April 2010
Crown Copyright ©
Lord Justice Rix :
"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.
The factual background
"Miss McDonald does not use incontinence pads as she tells me she finds it very undignified. Miss McDonald states she is not incontinent and needs supervision to mobilise to the toilet and to the commode. Miss McDonald prefers to have assistance to use the toilet during the day and the commode at night…
Should Ms McDonald pursue the viability of medication to assist her with bladder frequency and also have a pad on her bed it would help her to manage her continence and reduce the risks…
Summary of key problems/needs…
7. Miss McDonald needs assistance to manage continence at night Substantial Need."
"7. Miss McDonald needs assistance at night to use the commode Moderate Need."
This may have reflected the next needs assessment.
"Ms McDonald wanted to emphasis[e] 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 incontinent pads and sheets…
Summary of Needs Assessment…
7. Miss McDonald needs assistance to use the commode at night Substantial Need"
"Likewise, in this case, it is right to examine the underlying rationale for what is described as the assessed need. Here it is the consequence of the claimant's neurogenic bladder which means that she experiences frequency of urine. Because of that, she needs to get up and use the commode. Because of her physical impairment and frailty, she cannot do so without assistance, or she is exposed to a real risk of injury, as has happened in the history that I have set out, with serial hospital admissions as a result of her falls. The core need, then, is the safety of the claimant, in my judgment."
"a) The service user's view…
When it came to discussing Ms McDonald's toileting needs Ms McDonald found discussing something which she deemed so personal and private upsetting. Ms McDonald particularly opposed the suggestion that her toileting need could be met by the use of incontinence pads…
b) The provider's view…
Social Services have assessed and regularly reviewed Ms McDonald's care needs and concluded that the current care arrangements exceed those reasonably necessary to meet Ms McDonald's care needs. Ms McDonald considers that the need for support at night is essential because she cannot transfer unassisted to the commode, as a result of her disability. Social Services fully acknowledges the risk but they remain of the view that Ms McDonald's need should be managed through the use of incontinence pads, thus avoiding all together the risk of injury and also the need to have someone in her flat throughout the night, thereby providing her with greater privacy. This has been suggested by a number of NHS professionals over recent years.
A Judicial Review is currently in progress. A decision has been taken, for pragmatic reasons, that whilst this remains unconcluded, there will be a halt in the phased reduction of a night-time carer service for Ms McDonald. However, in the longer term, depending on the outcome of the case, it is intended to fully implement that reduction…
Toileting/Substantial Risk: Ms McDonald has been diagnosed with having a Neurogenic bladder, which makes Ms McDonald want to go to the toilet more frequently. Ms McDonald needs assistance to safely access the toilet during the day and, if she uses it at night. Ms McDonald states that she is not incontinent of urine and as already mentioned she is opposed to wearing an incontinence pad to meet her toileting needs. Ms McDonald estimates that she needs to use the commode two to three times during the course of the night. Ms McDonald would not be able to carry out these transfers safely, due to the issues identified in the mobility section…
Conclusion: Ms McDonald continues to live safely at home. There have been no hospital admissions since she was discharged in early 2007…[I]t 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 see[m] to be any reason why this planned reduction to provide care should not go ahead…
Review Decision No change community based services
Next Review Date 04/05/2010"
"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, refusing even to try the pads or to discuss the absorbent sheet option. I am aware that she considers pads and/or sheets to be 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 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 than 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. I do not consider that a night time carer is required in order to assist with turning in bed, because turning is not necessary and any risk of pressure sores from not turning can be addressed by provision of a pressure relieving mattress if appropriate.
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 legal framework
"The problem in this case, as it seems to me, is that the local authority never carried out their duty under section 47 and section 2 to assess the needs and to indicate what were the services that needed to be provided to meet those needs…[I]t seems to me to be perfectly clear that the needs that have led to the question about the provision of a stair lift are the needs for the applicants to be able to get in and out of the premises. Those are the relevant needs. They can be met, as it seems to me, either by removing them to other premises where access is possible for them, which in the context of this case, would be ground floor premises, or adapting the existing premises to provide a stair lift.
It is, in my judgment, impossible to regard the provision of a stair lift at home as 'the need'. In those circumstances, it is open to the local authority to reconsider the way in which those needs can be met provided that there has been no positive decision to meet them in a particular fashion. I say 'provided there has been no positive decision', but of course such a decision could itself be changed upon reconsideration. One must always bear in mind that it is the duty of the authority to meet the needs…Once they have identified after discussion the manner in which those needs are to be met, then the Act requires that they get on with it and meet those needs. But it seems to me that they are entitled to flexibility as to how those needs are to be met."
"It would certainly have been open to the Gloucestershire County Council to re-assess the individual applicants as individuals, judging their current needs and taking into account all relevant factors including the resources now available and the competing needs of other disabled persons. What they were not entitled to do, but what in my judgment they in fact did, was not to re-assess at all but simply to cut the services they were providing because their resources in turn had been cut. This amounted to treating the cut in resources as the sole factor to be taken into account and that was, in my judgment, unlawful."
"2. –(1) In assessing the needs of a person under section 47(1) of [NHSCCA 1990] a local authority must comply with paragraphs (2) and (4).
(2) The local authority must consult the person, consider whether the person has any carers and, where they think it appropriate, consult those carers.
(3) The local authority must take all reasonable steps to reach agreement with the person and, where they think it appropriate, any carers of that person, on the community care services which they are considering providing to him to meet his needs.
(4) The local authority must provide information to the person and, where they think it appropriate, any carers of that person, about the amount of the payment (if any) which the person will be liable to make in respect of community care services which they are considering providing to him."
The primary ground: whether the Royal Borough's decision in its letter of 21 November 2008 is consistent with its assessment of Ms McDonald's night-time need.
The second ground: article 8
"1. Everyone has a right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"The Court has also held that Article 8 cannot be considered applicable each time an individual's everyday life is disrupted, but only in exceptional cases where the State's failure to adopt measures interferes with the individual's right to personal development and his or her right to establish and maintain relations with other human beings and the outside world. It is incumbent on the individual concerned to demonstrate the existence of a special link between the situation complained of and the particular needs of his or her private life (see Zehnalovà and Zehnal v. The Czech Republic (dec.), no. 38621/97, ECHR 2002-V).
Even assuming that in the present case such a special link indeed exists – as was accepted by the Central Appeals Tribunal – , regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole and to the wide margin of appreciation enjoyed by States in this respect in determining the steps to be taken to ensure compliance with the Convention (see Zehnalovà and Zehnal, cited above).
This margin of appreciation is even wider when, as in the present case, the issues involve an assessment of the priorities in the context of the allocation of limited State resources (see, mutatis mutandis, Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, p. 3159, § 116, O'Reilly and Others v. Ireland (dec.), no. 54725/00, 28 February 2002, unreported). In view of the familiarity with the demands made on the health care system as well as with the funds available to meet those demands, the national authorities are in a better position to carry out this assessment than an international court."
See also Nitecki v. Poland (Application no 65653/01), Pentiacova v. Moldova (Application no 14462/03) and Mólka v. Poland (Application no 56550/00).
43 …Our conclusion is that Sullivan J was correct [in Bernard] to accept that article 8 is capable of imposing on a state a positive obligation to provide support. We find it hard to conceive, however, of a situation in which the predicament of an individual will be such that article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage article 3. Article 8 may be more readily engaged where a family unit is involved. Where the welfare of children is at stake, article 8 may require the provision of welfare support in a manner which requires family life to continue. Thus, in R (J) v. Enfield London Borough Council  EWHC 735 (Admin), where the claimant was homeless amd faced separation from her child, it was common ground that, if this occurred, article 8(1) would be infringed. Family life was seriously inhibited by the hideous conditions prevailing in the claimants' home in Bernard and we consider that it was open to Sullivan J to find that article 8 was infringed on the facts of that case…
48 …in considering whether the threshold of article 8 has been reached it is necessary to have regard both to the extent of the culpability of the failure to act and to the severity of the consequence. Clearly, where one is considering whether there has been a lack of respect for article 8 rights, the more glaring the deficiency in the public authority, the easier it will be to establish the necessary want of respect. Isolated acts of even significant carelessness are unlikely to suffice."
The third ground: the DDA 1995
"21B Discrimination by public authorities
(1) It is unlawful for a public authority to discriminate against a disabled person in carrying out its public functions…
21D Meaning of "discrimination in" section 21B
(2) For the purposes of section 21B(1), a public authority also discriminates against a disabled person if –
(a) it fails to comply with a duty imposed on it by section 21E in circumstances in which the effect of the failure is to make it –
(i) impossible or unreasonably difficult for the disabled person to receive any benefit that is or may be conferred, or
(ii) unreasonably adverse for the disabled person to experience being subjected to a detriment by which a person is or may be subjected,
by the carrying-out of a function by the authority; and
(b) it cannot show that its failure to comply with that duty is justified under subsection (3), (5) or (7)(c)…
21E Duties for purposes of section 21D(2) to make adjustments
(1) Subsection (2) applies where a public authority has a practice, policy or procedure which makes it –
(a) impossible or unreasonably difficult for disabled persons to receive any benefit that is or may be conferred, or
(b) unreasonably adverse for disabled persons to experience being subjected to any detriment to which a person is or may be subjected,
by the carrying-out of a function by the authority.
(2) It is the duty of the authority to take such steps as it is reasonable for the authority to take in order to change that practice, policy or procedure so that it no longer has that effect."
"If so, can the Council show that its failure to comply is justified in that either –
(a) it reasonably holds an opinion that the non-compliance is necessary in order not to endanger the health or safety of any other person; or
(b) its failure is justified as a proportionate means of achieving another legitimate aim?"
"45. Although Mr Armstrong invoked section 21B of the DDA, his submissions focused on the general duty under 49A. That is understandable, because in my view, putting to one side whether the Administrative Court is an appropriate forum for a section 21B claim, there are insuperable difficulties in the claimant establishing that there has been discrimination as defined in section 21D. In as much as the claimant relies on any alleged failure of duty to make adjustments, he has not proved that the failure resulted in it becoming impossible or unreasonably difficult for him to receive any benefit conferred by the carrying out of a council function. The relevant council function in this case was that of assessing needs for care services. The plain fact is that the claimant received a community care assessment as to his needs as a result of the decisions, in particular the decision of 11 December 2008. Any discriminatory treatment or any failure to make a reasonable adjustment under section 21B is always justified if the acts of the public authority concerned are a proportionate means of achieving a legitimate aim. In my judgment, the application by the council of its eligibility criteria was a proportionate means of achieving a legitimate aim, namely the equitable allocation of limited care resources."
Lord Justice Wilson :
Sir David Keene :