McDonald, R (on the application of) v London Borough of Kensington and Chelsea

Where a local authority has assessed an eligible need, it must meet that need. Resource constraints cannot justify failing to do so. Where the underlying need can be met in more than one way, however, the authority may choose the most economical method, provided the chosen method genuinely meets the assessed need. The court must distinguish between the need itself and the service or equipment used to meet it. A description such as assistance with a particular task may therefore require analysis of the underlying problem. An Article 8 claim founded on the same care decision does not require separate consideration where the principal public-law challenge fails.

The claimant sought permission to bring judicial review proceedings concerning the reduction of her night-time care and the proposed limitation of her care budget. The local authority’s assessments identified a need for assistance with using a commode at night and recorded that need as substantial. The authority contended that the underlying need was safety, which could be met either by night-time care or by incontinence pads, and that it could select the cheaper option. The claimant alleged breach of statutory duties, irrationality and interference with her Article 8 rights.

1. The application for permission to bring judicial review proceedings was refused. The authority’s duty was to meet the claimant’s assessed and eligible need, applying its eligibility criteria and the FACS guidance.
2. The court distinguished the identified need from the means of meeting it. The assessment recorded a need for assistance to use the commode at night. The underlying problem was the claimant’s neurogenic bladder, frequent urination and physical frailty, which made using the commode without assistance unsafe. The core need was therefore the claimant’s safety.
3. That need could be met in two ways: by providing a night-time carer or by providing incontinence pads so that repeated use of the commode was avoided. Consistently with R v Gloucestershire County Council ex parte Barry [1997] AC 584, shortage of resources could not excuse failure to meet an assessed need. It could, however, inform the choice between alternative methods of meeting that need. The reasoning in R v Kirklees Metropolitan Borough Council, ex parte Daykin [1998] 1 CCLR 512 supported treating the stair lift, rather than access to the premises, as the means of meeting the underlying need.
4. The Article 8 ground was parasitic upon the statutory and public-law ground. Since the principal challenge failed, no separate Article 8 issue required determination.
5. The claimant was ordered to pay £700, representing the defendant’s costs of the acknowledgment of service. Permission to appeal was refused because there was no realistic prospect of success, particularly in light of Daykin.