Court’s decision could open door to more council cuts


Campaigners fear that a court’s decision to back a council that cut a disabled woman’s care package – despite assessing her as needing that support – could lead to other local authorities taking similar action.

Elaine McDonald claimed that Kensington and Chelsea council’s decision to cut her care package from more than £700 to £450 per week, reducing her night-time support, would breach her right to be treated with dignity.

McDonald, a former principal ballerina with the Scottish Ballet, became disabled following a stroke in 1999 and later broke a hip as a result of a night-time fall. She had been provided with a weekly package of 22.5 hours of daytime support and another 10 hours of care seven nights a week.

A needs assessment by the council found night-time care was essential to provide supervision to prevent her falling while using the commode during the night, due to a bladder condition.

But two years ago – despite that assessment – the council said it planned to cut her care package, and that she could be given incontinence pads instead of an overnight care worker, even though she is not incontinent.

Although the Court of Appeal said the council had breached the law by threatening to cut her care provision in 2008, it said later reviews of her care in November 2009 and April 2010 meant they were then acting lawfully.

The court ruled that the council had not breached McDonald’s human rights or the Disability Discrimination Act.

Lord Justice Rix concluded that the council’s decision to meet her toileting need by using pads was “a reasonable decision” which “provides safety and a large degree of independence and privacy”.

And he said the council was right to balance its desire to help McDonald “with its responsibilities to all its clients within the limited resources available to it in its budget”.

But Douglas Joy, senior solicitor with Disability Law Service (DLS), which took McDonald’s case, said the court had found that a council could review a service-user’s care needs – and then reduce their support – without conducting a new assessment, in effect “assessing by stealth”.

He said: “It is a well-founded rule of community care that if there is an assessed need, they have a duty to provide it.

“But local authorities can now say to people, ‘OK, we had a review and now as a result we have decided to cut or change your needs.’”

Joy said DLS was hoping to appeal the ruling to the Supreme Court.

With councils across the country facing cuts in government funding of 26 per cent over the next four years, he said he feared the ruling would make it easier for other councils to cut disabled people’s support packages.

He said increasing numbers of disabled people were contacting the DLS legal advice line to say they had been told by their local authority that their needs were not going to be met “and the underlying reason for this is just spending cuts”.

The Equality and Human Rights Commission (EHRC), which funded McDonald’s appeal, said the judgment was “bad news for service-users and disabled people who receive community care”.

An EHRC spokeswoman added: “It is likely that local authorities will try and use the judgment to reduce community care and services for disabled people.”

Cllr Julie Mills, the council’s cabinet member for adult social care, said it was an “immensely important case”, and that, despite McDonald’s “strong preference” for a night-time carer, urinary problems were “a very common feature of getting older”.

She said: “I am pleased that the court has recognised that in making these difficult decisions the council must have regard to the resources available to others in need, as well as those of the appellant.”

8 November 2010