Overnight care ruling is ‘attack on rights’, say outraged campaigners

A European court ruling that has rubber-stamped the withdrawal of overnight care from a retired ballerina is yet another attack on the gains made by the disabled people’s movement over the last 40 years, say campaigners.

They spoke out after the long-awaited ruling in the case of Elaine McDonald, a former prima ballerina with the Royal Scottish Ballet, who took her local council to court after it withdrew her night-time care because it was too expensive.

McDonald, who became disabled 15 years ago after a stroke, was told to rely on incontinence pads instead of a care worker at night.

The European Court of Human Rights (ECHR) concluded this week that reducing the amount allocated for her care interfered with her rights, because she had to use the pads when she was not incontinent.

It said this was a breach of her right to a private life – under article eight of the European Convention on Human Rights – and that for nearly a year this was unlawful, because Kensington and Chelsea council had cut her care package without reassessing her needs.

McDonald was awarded damages of 1,000 euros, and £9,500 in legal costs, to compensate for this breach of her rights between 21 November 2008 and 4 November 2009.

But the court also unanimously found that – because the council had later carried out fresh reviews of her care – the removal of her night-time care was no longer unlawful after November 2009, despite the continuing breach of her rights.

The court said the state had “considerable discretion when it came to decisions concerning the allocation of scarce resources” and so this “interference” with her human rights had been “necessary in a democratic society”.

And it said it was “satisfied” that the UK courts had “adequately balanced the applicant’s personal interests against the more general interest of [Kensington and Chelsea council] in carrying out its social responsibility of provision of care to the community at large”.

Action Disability Kensington and Chelsea (ADKC), a disabled people’s organisation which has backed McDonald through her lengthy court battle, said it was “very disappointed” with the ruling.

Jenny Hurst, ADKC’s personal budgets coordinator, said: “It is another bite out of the independent living apple. Disabled people’s rights to independent living are being eroded one step at a time. When is it going to stop?

“As disabled people, it is something we all need to fight against, to ensure our rights under the UN convention and our human rights.”

She said that forcing McDonald to wear pads at night took no account of her wishes.

Hurst added: “Everything has been turned on its head. We are really moving back to medieval times, when disabled people weren’t seen as contributing to society.”

She also pointed out that Kensington and Chelsea council was due to underspend on its adult social care budget by £3.6 million in 2013-14.

Bill Scott, director of policy for Inclusion Scotland, was also “outraged” by the court’s decision.

He said: “It seems that the judges have decided that the state’s ‘right’ to make austerity cuts takes precedence over any individual human rights disabled people might have.

“The ECHR have been moving in this direction over recent years but the heartlessness and obvious bias of this decision takes the biscuit.”

He added: “Faced with the ECHR’s decision in this case, plus the court of appeal’s decision in the recent bedroom tax cases, many disabled people may be coming to the conclusion that the European Convention and the UN Convention on the Rights of Persons with Disabilities are a waste of paper if they cannot protect ill and disabled people from having their dignity and homes stolen or even being starved to death.”

But other campaigners were more positive about the ruling, and said it could now force local authorities to take more account of disabled people’s “right to dignity”.

They said it was the first time the court had identified a breach of article eight in a case involving the provision of care or support.

Sue Bott, director of policy and development for Disability Rights UK, said: “We are encouraged that the ECHR has taken the view that dignity and respect for a private life should be taken into account when the state is taking decisions regarding support [for] disabled people.

“This sends out a helpful message to those challenging their care plans.

“Local authorities must now balance decisions to make savings with the need to positively uphold an individual’s right to dignity, a private life and independence.”

Barristers Steve Cragg and Steve Broach, of Doughty Street Chambers, who represented McDonald in court on behalf of Disability Law Service, also said that the ruling was likely to help disabled people challenging cuts to their care packages.

And Stephen Bowen, director of the British Institute of Human Rights, said the ruling – although not a complete victory for McDonald – was “a timely reminder that whilst tough economic decisions rest with the national authorities, those decisions must respect our basic human rights”.

A spokeswoman for Kensington and Chelsea council said it was “greatly relieved” by the court’s ruling on what was an “immensely important case”.

She said: “We understood that our residents have strong preferences about how they are looked after; in fact, we do a great deal to accommodate those preferences.

“What we cannot do however is to  provide such a degree of personal care that the cost becomes prohibitive and compromises our ability to look after other equally vulnerable and deserving residents.”

She said that the damages awarded to McDonald related to a “temporary administrative and technical failing”, and that the court had concluded that “any practical consequences for the appellant had been mitigated” by the council.

22 May 2014