NHS - Nursing care - Authority seeking to amend care package

R (on the application of McDonald) v Royal Borough of Kensington and Chelsea: Supreme Court (Lords Walker, Brown, Kerr, Lady Hale, Lord Dyson SJJ): 6 July 2011

The claimant was an elderly lady with community care needs who fell under the auspices of the defendant local authority.

The authority was required by section 2(1)(a) of the Chronically Sick and Disabled Persons Act 1970 and section 47 of the National Health Service and Community Care Act 1990, to assess needs, and to decide by reference to that assessment whether the provision of relevant services was required, and then to make arrangements for the provision of those services. In September 1999, the claimant, then aged 56, suffered a stroke which left her with severely limited mobility.

In April 2006, she fell heavily and broke her hip in several places. She suffered two further falls which had each led to her hospitalisation. It was common ground that the claimant was substantially and permanently handicapped within the meaning of section 29(1) of the National Assistance Act 1948 and that the authority was therefore required to make arrangements for promoting her welfare.

The claimant also suffered from a small and neurogenic bladder which caused her to urinate between two to three times a night. She dealt with that by accessing a commode with the help of a carer, provided by the authority as part of a package of care services. The authority subsequently proposed that the claimant should use incontinence pads or special sheeting (pads) and so avoid the need for a night-time carer.

That would reduce the cost of her care by some £22,000 a year. The claimant was not incontinent and she opposed being treated as such. She sought to judicially review the authority’s decision, relying on article 8 of the European Convention on Human Rights.

The judge held that it was open to the authority to meet the claimant’s need for ‘safe urination at night’ in a more economical manner, by the provision of pads. The matter came before the Court of Appeal, which disagreed with the judge and held that the authority was in breach of its statutory duty.

However, the Court of Appeal held that since the need had been reassessed in ­subsequent care plan reviews, dated 4 November 2009 and 15 April 2010 (the 2009 and 2010 care plans), the claimant had no substantial complaint. The claimant had contended that there had been no further separate Needs Assessment Document. Her claims under article 8 of the Convention and the Disability Discrimination Act 1995 (the 1995 Act) were rejected. The claimant appealed to the Supreme Court.

Four issues fell to be determined:

(i) whether the appeal court had correctly held that the 2009 and 2010 care plan reviews were to be read as including a reassessment of the claimant’s community care needs; (ii) whether the authority’s decision to provide pads interfered with the claimant’s article 8 rights and, if so, whether such an interference was justified and proportionate; (iii) whether the authority had been ­operating any relevant policy or practice for the purposes of section 21E(1) of the 1995 act and, if so, whether that policy was justified as a proportionate means of achieving a legitimate aim, namely the equitable allocation of limited care resources; and (iv) whether the authority had failed to have due regard to the needs specified in section 49A of the 1995 act (the general disability equality duty) when carrying out their functions in the present case. Consideration was given to the secretary of state’s Directions: the Fair Access to Care Services Guidance (FACS), which was in force until February 2010, and the Community Care Assessment Directions 2004 (the 2004 Directions).

The appeal would be dismissed.

(Per Lord Brown) (1) It was settled law that local authorities were under a duty to make an assessment of needs under section 47(1)(a) of the 1990 act and, in so doing, were entitled to take account of their resources (see [8] of the judgment). (Per Lord Dyson) In construing assessments and care plan reviews, it should not be overlooked that those documents were usually drafted by social workers and not by lawyers.

They should be construed in a practical way against the factual background in which they had been written and with the aim of seeking to discover the substance of their true meaning (see [53] of the judgment).

In the present case, it was impossible to disagree with the conclusion of the Court of Appeal that the 2009 and 2010 reviews were to be read as including a reassessment of the claimant’s needs and that it was irrelevant that there had been no further separate Needs Assessment Document.

The authority could hardly have gone further in compliance with the secretary of state’s Directions, in their efforts to consult the claimant and if possible to agree with her the services they were considering providing to meet her needs (see [12]-[13] of the judgment).

(2) It was a settled principle of law that article 8 of the convention imposed a positive obligation on states to respect a person’s private life and to take measures to provide welfare support, and that home-based community care fell within the scope of the article, provided the applicant could establish both (i) a direct and immediate link between the measures sought by an applicant and his or her private life, and (ii) a special link between the situation complained of and the particular needs of the applicant’s private life.

Even assuming that those links did exist, there were clear and consistent authorities that established the wide margin of appreciation enjoyed by states in striking the fair balance between the competing interests of the individual and of the community as a whole and in determining the steps to be taken to ensure compliance with the convention.

The margin of appreciation was even wider when the issues involved an assessment of the priorities in the context of allocation of ­limited state resources (see [15]-[16] of the judgment).

In the present case, the claimant could not establish an interference by the authority with her article 8 right. Even if such an interference were established, it would be clearly justified under art 8(2) on the grounds that it was necessary for the economic well-being of the authority and the interest of their other service-users, and was a proportionate response to the claimant’s needs because it afforded her the maximum protection from injury, greater privacy and independence, and resulted in a substantial costs saving (see [19] of the judgment).

In the present case, it was impossible to regard the authority’s decision as the manifestation or application of anything that could properly be characterised as a ‘practice, policy or procedure’, for the purposes of section 21E(1) of the 1995 act. In taking the impugned decision, the authority was doing no more and no less than its statutory duty.

Even were that not so, the authority’s acts had to be regarded as constituting a proportionate means of achieving a legitimate aim within the meaning of section 21D5 of the act (see [22] of the judgment).

(4) Where, the person concerned was ex-hypothesi disabled and the public authority was discharging its functions under statutes which expressly directed its attention to the needs of the disabled persons, it might be entirely superfluous to make express reference to section 49A of the 1995 act and absurd to infer from an omission to do so a failure on the authority’s part to have regard to their general duty under that section (see [24] of the judgment).

In the present case, there had been no failure on the part of the authority to have regard to its general duty under section 49A of the 1995 act (see [24] of the judgment).

Decision of the Court of Appeal [2010] All ER (D) 138 (Oct) affirmed.

Stephen Cragg and Stephen Broach (instructed by Disability Law Service) for the claimant; Kelvin Rutledge and Sian Davies (instructed by Royal Borough of Kensington and Chelsea Legal Services) for the ­authority; Ian Wise QC (instructed by Irwin Mitchell) for the intervening party, Age UK.