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

The Supreme Court dismissed the appellant's challenge to the respondent local authority's decision to seek to meet her night-time toileting needs by providing incontinence pads rather than continuing a night-time carer. The court accepted the Court of Appeal's conclusion (Rix LJ) that the Care Plan Reviews of 4 November 2009 and 15 April 2010 were to be read as including a reassessment of the appellant's community care needs and that, on domestic law, a local authority may take account of its resources when deciding how to meet assessed needs (R v Gloucestershire County Council, Ex p Barry). The court held that there was no actionable interference with the appellant's article 8 rights, and that even if there had been such an interference it would have been justified and proportionate. Claims under the Disability Discrimination Act 1995 (sections 21D/21E and the general duty in section 49A) were rejected: the decision was not a manifestly unlawful application of a policy or practice and, in any event, was a proportionate means of achieving a legitimate aim.

Background and facts. The appellant, formerly a professional ballet dancer, suffered a disabling stroke and subsequent injuries leaving her with severely limited mobility and a neurogenic bladder requiring urination two to three times at night. The local authority had provided night-time assistance to reach a commode; it proposed instead to meet night-time toileting needs by providing incontinence pads and absorbent sheets to avoid the need for a night-time carer.

Procedural history. The local authority communicated a reduction in funded night-time care on 21 November 2008. The appellant applied for judicial review (22 December 2008). Permission was initially refused by a deputy High Court judge at a rolled-up hearing. Permission was later granted by a single Lord Justice and the substantive challenge proceeded to the Court of Appeal, which gave a reserved judgment on 13 October 2010 ([2010] EWCA Civ 1109). The appellant appealed to the Supreme Court.

Relief sought and issues. The appellant sought judicial review of the decision to alter her care so as to dispense with a night-time carer and provide pads instead. The parties identified four issues: (1) whether the 2009 and 2010 Care Plan Reviews included a reassessment of needs; (2) whether the decision interfered with the appellant's article 8 rights and, if so, whether any interference was justified and proportionate; (3) whether the local authority was operating a relevant policy or practice for the purposes of section 21E of the Disability Discrimination Act 1995 and, if so, whether any failure to change it was justified under section 21D(5); and (4) whether the authority failed to have due regard to the general disability equality duty under section 49A DDA 1995.

Court's reasoning. On issue one the majority accepted Rix LJ's analysis: the 2009 and 2010 reviews must be read as incorporating a reassessment of the appellant's needs because (i) the reviews explicitly reviewed outcomes and considered alternative means of meeting night-time toileting needs; (ii) the Secretary of State's Fair Access to Care Services guidance and the Community Care Assessment Directions envisage that reviews will re-assess needs; and (iii) the documentation and consultation showed the authority's consistent view that pads were a practical and appropriate solution.

On issue two the court applied Strasbourg and domestic authorities on positive obligations under article 8, noting the wide margin of appreciation and that resource allocation issues commonly attract an even wider margin. The court concluded there was no established interference with article 8 by the authority's process and, in any event, any interference would have been justified as necessary and proportionate to protect safety, privacy of others and the equitable allocation of limited resources.

On issue three the court rejected the submission that the decision represented an unlawful policy or practice under section 21E. The majority considered the decision to be the exercise of the authority's statutory functions, not the application of a discrete discriminatory policy. Even if section 21E applied, the measures were a proportionate means of achieving a legitimate aim within the meaning of section 21D(5).

On issue four the court held that absence of an express reference to section 49A did not demonstrate failure to have due regard to the general equality duty where the authority was discharging functions under statutes expressly concerned with disabled persons. The court dismissed the appeal.

Dissent and separate reasoning. Lady Hale dissented on the substantive question of law she considered most important: whether it is lawful for a local authority to meet the needs of a person who can control bodily functions but cannot safely reach the lavatory by providing incontinence pads instead of assistance to reach the lavatory. She considered it irrational to recast a need for assistance to reach the toilet as a need to avoid leaving the bed and would have allowed the appeal. Lord Walker, Lord Kerr and Lord Dyson agreed with dismissal but recorded different emphases on issue one and on reasoning about reassessment.

Appeal dismissed. The majority agreed with the Court of Appeal that the 2009 and 2010 Care Plan Reviews were to be read as including a reassessment of the appellant's community care needs and that the local authority lawfully decided to meet night-time toileting needs by providing pads. The authority had complied with statutory guidance and directions, the article 8 claim failed (and would in any event be justified and proportionate), the DDA claims under sections 21D/21E and the general duty in section 49A failed, and the decision was not irrational.

Started as a judicial review (application 22 December 2008). Permission initially refused at a rolled-up hearing before Frances Patterson QC (5 March 2009). Permission later granted by a single Lord Justice and the substantive challenge proceeded to the Court of Appeal (Rix LJ, Wilson LJ, Keene J) whose reserved judgment was handed down on 13 October 2010 ([2010] EWCA Civ 1109). The appellant then appealed to the Supreme Court ([2011] UKSC 33).