McDonald, R (on the application of) v Royal Borough of Kensington & Chelsea

A local authority must assess community-care needs and, once it has deliberately formulated a specific need, arrange services to meet it. The court should not recast that need as a broader underlying objective in order to justify a different service. Resources may be considered when assessing needs and choosing between lawful means of meeting them, but cannot alone justify a reduction without reassessment. A care-plan review may reassess needs; a separate needs-assessment document is unnecessary. Following lawful reassessment, pads may reasonably meet a night-time toileting need where they promote safety, privacy and independence and support equitable resource allocation. A domestic breach does not automatically amount to a breach of Article 8, and the decision did not breach the Disability Discrimination Act 1995.

Ms McDonald, who had substantial mobility impairment following a stroke, required assistance to transfer to a commode during the night. The Royal Borough reduced her care budget on the basis that pads or absorbent sheets could meet her underlying need to urinate safely, although the July 2008 needs assessment recorded a need for assistance to use the commode.

The Administrative Court, in [2009] EWHC 1582 (Admin), refused permission for judicial review and accepted that the underlying need was safety. The Court of Appeal considered whether the authority was bound by the specific assessment, whether later care-plan reviews amounted to reassessments, and whether the decision breached Article 8 or the Disability Discrimination Act 1995.

Lord Justice Rix gave the substantive judgment. Lord Justice Wilson and Sir David Keene agreed.

1. Statutory assessment. The welfare legislation requires a local authority to assess needs, decide whether services are called for by reference to that assessment, and arrange the services decided upon. It may have regard to resources when assessing needs and selecting between different means of meeting an assessed need. It may not simply reduce provision because resources have fallen without reassessing individual needs and considering relevant factors.
2. Specific assessed need. The July 2008 assessment deliberately recorded a need for assistance to use the commode at night. The assessment of need was primarily for the authority, not the court. Kirklees was of limited assistance because the authority in that case had not made an assessment. Until a lawful reassessment occurred, the Royal Borough’s decision of 21 November 2008 to provide a different service failed to meet the assessed need and breached its statutory duty.
3. Later reviews. The 2009 and 2010 care-plan reviews amounted to reassessments. Under the Community Care Assessment Directions 2004 and Fair Access to Care Services guidance, a separate needs-assessment document was unnecessary. The reviews reformulated the need in general terms and concluded that pads were a reasonable and adequate means of meeting it. The authority therefore acted lawfully after 4 November 2009. The use of pads was supported by considerations of safety, independence, privacy, dignity and limited resources.
4. Article 8. Article 8 was engaged in the sense that the issue fell within its scope, but not every breach of a domestic welfare duty amounts to an Article 8 breach. The threshold depends on the severity of the consequences and the culpability of the public authority. The interim arrangements, the mitigation of the initial breach and the authority’s genuine attempt to balance Ms McDonald’s dignity, autonomy and safety with the interests of other service users meant that no Article 8 breach was established. No damages were therefore available on that basis.
5. Disability discrimination. The court was sceptical that the authority had a relevant discriminatory practice or policy for the purposes of sections 21D and 21E of the Disability Discrimination Act 1995. In any event, the later reassessment and decision were a proportionate means of achieving the legitimate aim of equitably allocating limited care resources. The claim under the Act failed.

The claim therefore achieved limited success on the primary statutory ground for the period from 21 November 2008 to 4 November 2009, but failed in respect of the later reviews, Article 8 and disability discrimination.

1. Court of Appeal (Civil Division) Permission to appeal was granted by Laws LJ. The court found a statutory breach between 21 November 2008 and 4 November 2009, but rejected the Article 8 and disability-discrimination claims and found no later breach.
2. Administrative Court Frances Patterson QC, sitting as a deputy High Court judge, refused permission for judicial review in [2009] EWHC 1582 (Admin), holding that the underlying assessed need was safe night-time urination.