Disabled applicant not entitled under Article 8 to specific care needs

7 June 2014 by

1bf7130a-fcfMcDonald 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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: