The Supreme Court’s decision to reject a disabled woman’s appeal over the withdrawal of council-funded support has “disgusted” campaigners, who have warned of the “extremely worrying implications” for other service-users across the country.
The court ruled this week – by a four-to-one majority – that Kensington and Chelsea council did not break the law by deciding to withdraw night-time support for Elaine McDonald, even though it had assessed her as needing that support.
The council’s decision meant McDonald would have to use incontinence pads at night, even though she was not incontinent.
McDonald, who was said to be “very disappointed” by the ruling, is now determined to appeal to the European Court of Human Rights.
Disability Law Service (DLS), which has supported and represented McDonald in her legal fight since 2008, said it was a “worrying judgment”.
Douglas Joy, senior solicitor for DLS, said many people felt “very let down” because the Supreme Court had missed an opportunity to “reinforce the rights of disabled people”, and he pointed to the “huge support” for McDonald on social media websites such as Twitter.
Joy said the ruling leaves other disabled people who receive support “in a fairly precarious position” – particularly in the “current climate of financial cuts where local authorities are looking to reduce spending” – and would make it easier for councils to cut their care packages.
McDonald, a former principal ballerina with the Scottish Ballet, became disabled following a stroke in 1999 and later broke a hip in a night-time fall. She had been provided with a weekly package of daytime support, as well as care seven nights a week.
A council needs assessment found night-time care was essential to prevent her falling while using the commode, which she needed to use at night due to a bladder condition.
But in 2008 – despite that assessment – the council said it planned to cut her care package, and said she could be given incontinence pads instead of an overnight care worker, even though she was not incontinent.
McDonald’s lawyers had argued that the council failed to reassess her needs properly, and breached the Disability Discrimination Act and her rights under the European Convention on Human Rights.
Joy said this week’s ruling would give “leeway and discretion” to other councils to carry out reassessments “pretty much how they want”.
RADAR said it was “disgusted” that the Supreme Court – with the exception of Baroness Hale, the one judge who found in favour of the appeal – had spoken out against McDonald’s right to dignity.
Liz Sayce, RADAR’s chief executive, said the judgment showed there was clearly “something fundamentally wrong with the attitudes in society towards disabled people” and that “cost and convenience for a local authority must not and cannot trump dignity for a human being”.
Inclusion London said it was “completely intolerable” that Britain’s richest borough was denying the human rights of disabled people, and that “any decent government would step in” and force the council to provide the necessary support.
In contrast to the other four judges, Baroness Hale said that the needs of the individual should be measured against the standards of “civilised society”.
She added: “In the United Kingdom we do not oblige people who can control their bodily functions to behave as if they cannot do so, unless they themselves find this the more convenient course. We are, I still believe, a civilised society.”
But one of the other four judges, Lord Brown, concluded that providing McDonald with incontinence pads was “a proportionate response… because it affords her the maximum protection from injury, greater privacy and independence, and results in a substantial costs saving”.
The Equality and Human Rights Commission (EHRC), which funded McDonald’s appeal, said the comments of Baroness Hale indicated that she had “a deeper understanding of the implications of the ruling” than the other judges.
John Wadham, a legal director at the EHRC, added: “Local authorities will now have greater discretion in deciding how to meet a person’s home care needs and will find it easier to justify withdrawing care.”
He said this would mean people’s human rights to “privacy, autonomy and dignity” would “often be put at serious risk”.
Kensington and Chelsea council said: “We understood that this resident had a strong preference for a night-time carer; however the cost of providing personal care of this kind in this case would have been prohibitive and would compromise our ability to look after other vulnerable residents.”
7 July 2011