Courts reluctant to intervene over care for elderly and disabled

2 November 2010 by Matthew Hill

Updated | R (McDonald) v Royal Borough of Kensington and Chelsea, [2010] EWCA Civ 1109 – read judgment

The Court of Appeal has held that a local authority was entitled to reduce the care package provided to one of its resident following a re-assessment of her needs, even though this had the effect of forcing her, against her wishes, to use incontinence pads and/or absorbent sheets at night.

In doing so, the authority did not breach Article 8 ECHR (right to privacy and family life), or the relevant disability discrimination legislation. The judgment suggests that the courts will only intervene in disputes about the level of care being provided by local authorities in limited circumstances, something that may be significant in an environment of public spending cuts.

The claimant, M, had a medical condition that caused her to urinate three times during the night. Following a stroke she suffered from reduce mobility such that she could only safely use a commode with the assistance of a carer. In July 2008 the Defendant local authority, K&C, undertook a Needs Assessment in line with its statutory duties. This assessed the need for “assistance to use the commode at night” as a core need for safety, and allocated a sum to pay for a night-time carer for 10 hours a night, seven nights per week. In October 2008, K&C purported to withdraw this support on the basis that M’s needs could be met by providing her with incontinence pads and/or absorbent sheets (which I will refer to jointly as “pads”). M immediately challenged this decision on the grounds set out below. As a result of the challenge, K&C put in place an interim arrangement whereby it provided a carer for 4 nights per week (M’s partner assisting on the other nights). In November 2009 and spring 2010, while the proceedings were continuing, K&C carried out Care Plan Reviews, which concluded (among other things) that M’s night-time toileting needs could be met by the provision of pads. It was estimated that the additional cost of a night-time carer was £22,000 per year.

M had a horror of using the pads, and wished to continue using a commode. She also objected to being classified, inaccurately, as “incontinent”. She sought judicial review of K&C’s decision, arguing at first instance that the authority was unlawfully failing to meet her assessed needs, and that in doing so it was also violating her Article 8 rights. Her claim was dismissed, and then renewed before the Court of Appeal where she also argued that K&C was in breach of the ss. 21B, 21D and 21E of the Disability Discrimination Act 1995 (DDA 1995).

In respect of the statutory duty, Rix LJ (giving the only reasoned judgment of the court, which was agreed by Wilson LJ and Sir David Keene), described K&C’s statutory duty to M in the following terms:

“[32] Thus these Acts [s.47 National Health Service and Community Care Act 1990, s.29 National Assistance Act 1948, s.2(1)(a) Chronically Sick and Disabled Persons Act 1970] require a local authority to assess needs, then to decide by reference to such an assessment whether the provision of relevant services are called for, and then to make arrangements for the provision of the services which have been decided upon as being called for.

…

[34] Relevant jurisprudence has determined the extent to which a local authority is entitled in the assessment of needs and the provision of services to meet such needs to have regard to resources. It is entitled to have regard to them in assessing needs (R v. Gloucestershire County Council ex parte Barry [1997] AC 584) and in choosing between different means of meeting the assessed need [R v Kirklees Metropolitan Borough Council ex parte Daykin [1998] 1 CCLR 512]. Subject to that, however, a need, once assessed, has to be met by the provision of services.”

In respect of M’s case, the last sentence of paragraph 34 was of critical importance. In July 2008 she had been assessed – in terms – as requiring assistance to use a commode at night. K&C argued, successfully at first instance, that the local authority and a court could look beyond the actual words used in the assessment in order to identify its underlying rationale, which was taken to be a need to urinate safely at night. If this need could be met by other, cheaper means (such as using pads), it was argued that K&C were entitled to do so. It was submitted on M’s behalf that this was not so: once a need had been assessed, a local authority had a statutory duty to meet it, and the question of resources could only be relevant to the means used. As pads did not constitute assistance in using a commode, K&C’s proposal was not lawful.

Finding for M on this point, Rix LJ expressed sympathy with K&C’s argument that the “true need was the underlying one of safety in managing [M’s] night-time toileting.” However:

“[Counsel for K&C] accepts that that language of the July 2008 needs assessment was deliberately chosen, and was not the result of any error. On that basis, it contrasts strongly in its specific form with the more general formulation of Ms McDonald’s need to be found in earlier (and later) documents. If an assessed need is precisely formulated in terms of a “TV set”, it seems to me that it would not be in order for that need to be met with the supply of a radio on the basis that the real need was communication and/or entertainment. It is for the authority, carrying out the detailed guidance [issued by the Department of Health under s. 7(1) Local Authority Social Services Act 1970], rather than the court, to formulate the assessed need.”

It followed that K&C was in breach of its statutory duty in not providing a carer every night in the period during which M was assessed as requiring assistance with using a commode.

However, M’s victory was a narrow one. The Court also found that the reviews of November 2009 and spring 2010, in which it had been stated that M’s needs could be met with pads, were lawful re-assessments of her care requirements. As these did not state that she needed assistance with using a commode (and in fact considered this the less preferable option on the grounds of safety), K&C was entitled to withdraw that support and replace it with the provision of pads. Hence K&C had acted unlawfully only in respect of the three nights per week between October 2008 and November 2009 in which it had not provided a night time carer.

In respect of Article 8, the Court rejected M’s arguments that requiring her to use pads was a breach of her right to respect for her private and family life. Citing the case of Sentges v The Netherlands (Application No 27677/02) [6], where the issues was whether an applicant with muscular dystrophy should have been supplied with a robotic arm, the Court noted that a failure by a state body to provide support in such situations would only breach Article 8 in “exceptional cases”. A fair balance had to be struck between the needs of the community and the needs of the individual, and the margin of appreciation left to states when allocating priorities in the context of limited resources was wide. The Court also referred to Anufrijeva v Southwark LBC [2003] EWCA Civ 1406 [43], in which it was held that it was:

“hard to conceive … of a situation in which the predicament of an individual [as opposed to a family unit containing young children] 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 ECHR [the right to protection against cruel, inhuman and degrading punishment].”

In M’s case, where it was not argued that M’s suffering amounted to a breach of Article 3, Rix LJ held that the conditions for finding a breach of Article 8 were not established.

The Court also dismissed M’s claim under the DDA on the basis of proportionality:

“there can be no breach of duty where a particular decision can be justified under section 21D [DDA 1995], or where it would not be reasonable in all the circumstances to require an authority to change its policy or practice. Ultimately, the question becomes whether a policy or practice is proportionate. Where, as here, the decision – and for these purposes it is only necessary to consider the ultimate reassessment in 2009 and 2010 – was only taken after great pains had been expended in trying to find the correct solution for Ms McDonald, applying [the Department of Health guidance] and taking into account not only the question of resources but also her safety, independence and privacy, it seems to me to be impossible to conclude other than that any policy or practice was justified as a proportionate means of achieving a legitimate aim, namely the equitable allocation of limited care resources. In this connection, it has to be remembered that the cost of night-time care for Ms McDonald would be an ongoing liability in the amount of £22,000 a year, a figure which in theory would have to be available for all other clients in Ms McDonald’s situation.”

What conclusions can be drawn from this difficult case? First, the actual terms in which an individual’s needs are assessed are highly significant. If an assessment states a specific item should be provided, then the local authority are lawfully obliged to provide it. This allows some protection for an individual from the arbitrary withdrawal or redrawing of the assistance that he receives; it also provides notice to local authorities to take care in drafting their assessments.

Second, and qualifying the first point significantly, there is nothing to prevent a local authority from re-assessing a resident’s needs as long as this is done properly (and is not simply a sham designed to save money). In any such re-assessment a local authority would be entitled to have regard to its resources (among other relevant considerations). It is notable that throughout his judgment in M’s case, Rix LJ expressly praised K&C for its approach, which he considered to be borne out of “a genuine attempt to assist” M, while performing “the difficult task of balancing [this] desire … with its responsibilities to all it clients within the limited resources available to it in its budget”.

Finally, the Court’s attitude to the Article 8 and DDA arguments indicates that it would intervene on these grounds only in the most extreme cases. For an individual to succeed in an Article 8 argument, it is likely that he would need to establish that he had suffered treatment approaching a violation of his Article 3 rights as a consequences of the failure to provide care. This is a very high threshold, although it seems that a different, lower, test applies where family units are concerned.

The theme running through each of these points is that it is primarily for the local authorities – and ultimately those who elect them – to decide on what levels of care they should provide to their residents. The Courts’ role is limited to ensuring that the authorities correctly address their statutory responsibilities, and to providing a “safety net” via Article 8 to catch those whose suffer so much as a result of a lack of care that it amounts to a breach of their fundamental rights. A dramatic and distressing example of the latter is provided by the case of R (Bernard) v Enfield LBC [2002] EWHC 2282 (Admin), in which Sullivan J found that Article 8 was breached when a council’s failure to take steps to resolve a family’s accommodation situation left the wife, a paralysed wheel-chair user, confined to a living room where she was forced to defecate and urinate on the floor. For M, the Court had sympathy but ultimately no remedy. In light of this judgment and the current economic climate, future campaigning on similar cases is likely to take place predominantly in the political rather than the legal sphere.

Update, 4 Nov 2010 – David Brindle has reported the case on guardian.co.uk, and suggests that the case is a “green light” for local councils to cut social care services to elderly and disabled people previously assessed as needing them:

… The judgment could affect services to hundreds of thousands of vulnerable adults, including care at home, meals-on-wheels, escorted transport and places at day centres. Councils face a 26% cut in grants over the next four years, although the government says it is providing enough funding for social care to be protected. The focus until now has been on tightening eligibility for people not yet receiving services.