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

A local authority may reassess a disabled person’s community care needs within a care plan review. No separate needs-assessment document is required. The review must be construed practically and as a whole. Resources may inform both the assessment of need and the manner in which an eligible need is met.

Choosing a safer and less costly means of meeting an assessed need does not infringe article 8 of the European Convention on Human Rights where the authority has genuinely consulted the person, respected their autonomy and reached a proportionate decision. The disability equality duty concerns substance rather than form. An authority need not expressly cite that duty where its decision-making demonstrably addresses the disabled person’s needs.

R (on the application of McDonald) v Royal Borough of Kensington and Chelsea concerned a disabled woman who needed help to use a commode several times each night. The local authority proposed instead to provide incontinence pads or absorbent sheets. It considered that arrangement safer, more private and less costly, although the appellant was not clinically incontinent and regarded the proposal as an affront to her dignity.

The Administrative Court refused permission for judicial review at a rolled-up hearing. The Court of Appeal, [2010] EWCA Civ 1109, held that the authority’s original decision was inconsistent with the 2008 assessment, but that later care plan reviews had reassessed the need and removed any substantial complaint. It also rejected claims under article 8 of the European Convention on Human Rights and the Disability Discrimination Act 1995.

The Supreme Court considered whether the reviews contained a lawful reassessment, whether article 8 was infringed, whether a discriminatory policy or practice existed, and whether the authority had complied with the disability equality duty.

1. Appeal dismissed by a majority of four to one. Lord Brown delivered the leading judgment. Lord Walker and Lord Dyson agreed with his reasons, while Lord Kerr agreed in the result and on the remaining issues but approached the reassessment issue differently. Lady Hale dissented.

2. Lord Brown held that the 2009 and 2010 care plan reviews incorporated a reassessment of the appellant’s needs. Section 47 of the National Health Service and Community Care Act 1990 did not require a separately titled needs-assessment document. The statutory guidance contemplated reassessment within a care plan review. Read practically, the documents treated the relevant need as safe management of night-time toileting and concluded that pads or absorbent sheets could meet it. Domestic law did not prevent the authority from identifying and meeting the need in that manner.

   Under R v Gloucestershire County Council, Ex p Barry [1997] AC 584, need was a relative concept. An authority could consider its resources when assessing need. Once a need fell within a category which the authority had undertaken to meet, it had to meet that need, although resources could again inform the manner of provision.

3. Lord Dyson added that social care documents should be construed practically against their factual background and according to their substance. An unchanged underlying condition did not prevent reassessment. An authority could reconsider its assessment because of altered eligibility criteria, relevant medical or technological developments, or a change of view, subject to rationality and Convention rights. Lord Kerr considered that no reassessment had been intended, but that the reviews supplied enough information to permit the need to be recast. Any failure was technical and relief would properly be refused as a matter of discretion.

4. The article 8 claim failed. The authority had consulted extensively, respected the appellant’s dignity and autonomy, and allowed choices within the available care package. There was no interference with private life. Even if there had been interference after the 2009 review, it was justified under article 8(2). The arrangement protected the appellant from injury, promoted privacy and independence, preserved resources for other users and produced a substantial saving. States enjoyed a particularly wide margin where limited welfare resources had to be allocated.

5. The individual care decision was not a “practice, policy or procedure” for section 21E(1) of the Disability Discrimination Act 1995. In any event, it was a proportionate means of achieving a legitimate aim. The section 49A duty was also satisfied. “Due regard” meant regard appropriate in all the circumstances, and compliance depended on substance rather than express reference to the provision.

6. Lady Hale would have allowed the appeal. In her view, section 2(1) of the Chronically Sick and Disabled Persons Act 1970 required separate identification of the person’s need and of the means of meeting it. She considered it irrational to treat a need for assistance in reaching a lavatory or commode as equivalent to a need for protection from uncontrollable bodily functions.

1. United Kingdom Supreme Court: By a majority of four to one, dismissed the appeal and upheld the Court of Appeal’s disposition: [2011] UKSC 33 .
2. Court of Appeal: Held that the original 2008 decision breached the authority’s statutory duty, but that the 2009 and 2010 reviews reassessed the need and left no substantial complaint. It rejected the article 8 and Disability Discrimination Act 1995 claims: [2010] EWCA Civ 1109 ; (2010) 13 CCL Rep 664.
3. Administrative Court: At a rolled-up hearing, the deputy judge refused permission for judicial review. She held that the assessed need could be understood as safe night-time urination and could lawfully be met by providing pads.