Disabled applicant not entitled under Article 8 to specific care needs

7 June 2014 by Rosalind English

McDonald v United Kingdom [2014] ECHR 942 (20 May 2014) – read judgment

The Strasbourg Court has ruled that local authorities are within their margin of discretion to balance individuals’ personal interests against the more general interest of the competent public authority in carrying out their social responsibility of provision of care to the community at large.

Background

The applicant, who suffered from an incapacitating stroke in 1999, required assistance with all transfers and mobilisation. Disabled persons have an individual right to certain services under section 2(1) of the Chronically Sick and Disabled Persons Act 1970, and under the 1990 National Health Services and Care Act  to require an assessment of needs from their local authority. In  making such an assessment the local authority is permitted take account of its resources. In her Needs Assessment it noted that Ms Mcdonald had requested night care in order for someone to assist her using commode during the night. This was because she did not wish to use incontinence pads and sheets, which she considered an affront to her dignity. A request for such assistance moved her Needs Assessment from “Moderate” to “Substantial”, and therefore for a brief period the applicant’s assessed need had been for assistance to use a commode.  However the local authority considered that provision to be in excess of that required to meet her eligible needs under the prevailing care services criteria (although the night time care continued for part of the week by way of a concession).

Mrs McDonald sought permission to apply for judicial review on the ground 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. She was refused permission, the judge concluding that the local authority had been entitled to meet the applicant’s need in “the most economic manner”, and that her complaints under Article 8 were parasitic on the first ground of unlawfulness and therefore raised no separate issue. When Ms McDonald applied for permission to appeal against the decision, the local authority submitted that the provision of a night-time carer would cost £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 appeal failed, with the Court of Appeal reaching the view that although the authority had erred by not implementing the night care during the period when it had conceded Ms McDonald was entitled to it, the error was not borne 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 within the limited resources available to it”.

The Supreme Court took a similar view. Lord Brown observed that even if a direct link existed between the measures sought by the applicant and her private life, it had always been established that states enjoyed a wide margin of appreciation in striking a fair balance between the competing interests of the individual and of the community as a whole.

The applicant petitioned the Strasbourg Court, claiming breach of her rights under Article 8.

The Court’s Decision

The Court drew an analogy with the consideration of Article 8’s protection of personal autonomy in Pretty v United Kingdom. Although the facts of the present case differed significantly from those of Pretty, insofar as the present applicant believed that the level of care offered by the local authority would have undignified and distressing consequences, she too was faced with the possibility of living in a manner which “conflicted with [her] strongly held ideas of self and personal identity”. In the Supreme Court, Baroness Hale, in her dissenting opinion, appeared to accept that considerations of human dignity were engaged when someone who could control her bodily functions was obliged to behave as if she could not.

Article 8 did impose a level of positive obligation on states. But the scope of that positive obligation was problematic, particularly where the Contracting State was being required to put in place a level of entitlement to care equivalent to that claimed by the applicant.

The problem here was that the local authority had initially provided the applicant with a night-time carer, albeit, in the description of the Supreme Court, as a “concession” granted on a “temporary basis”. The applicant was therefore complaining not of a lack of action but rather of the decision of the local authority to reduce the care package that it had hitherto been making available to her. As such, an appropriate comparator would be the case of Watts v. The United Kingdom (dec.), no. 53586/09 of 4 May 2010, in which the Court was content to proceed on the basis that a decision to close the care home where the elderly applicant was resident and to transfer her to another home constituted an interference with her rights under Article 8.

Having said, this , however, the Court did not accept the applicant’s submission that the local authority had acted unlawfully and that there had been no proper proportionality assessment by the domestic courts. The national courts had adequately balanced the applicant’s personal interests against the more general interest of the competent public authority in carrying out its social responsibility of provision of care to the community at large.

In such cases, it was not for this Court to substitute its own assessment of the merits of the contested measure (including, in particular, its own assessment of the factual details of proportionality) for that of the competent national authorities (notably the courts) unless there were shown to be compelling reasons for doing so.

The Court therefore held that there had only been a violation of Article 8 in respect of the period the from 21 November 2008 to 4 November 2009, when the proposed care provision was “not in accordance with the law”; after that time the local authority not acted unlawfully in reducing her care-package. It could not be said that the competent authorities of the respondent State exceeded the margin of appreciation afforded to them, notably in relation to the allocation of scarce resources.

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