Supreme Court to hear landmark case on councils’ right to cut support

The Supreme Court will this week hear an appeal case with “massively important” implications for disabled people who fear councils could try to cut their packages of support.

The court will hear the appeal of Elaine McDonald, whose care was cut by Kensington and Chelsea council even though it had assessed her as needing that support.

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 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 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 is not incontinent.

In November, the Court of Appeal ruled that the council had not breached care laws, McDonald’s human rights or the Disability Discrimination Act (DDA) by cutting her support.

The Supreme Court confirmed just two weeks ago that it had granted her leave to appeal.

McDonald’s case is being funded by the Equality and Human Rights Commission, which said in November that it feared other councils would use the judgment to “reduce community care and services for disabled people”.

Douglas Joy, McDonald’s solicitor, of Disability Law Service, said the Court of Appeal had found that a council could simply review a service-user’s care needs – and then reduce their support – without needing to conduct a new assessment.

Joy said the “massively important” case, which is being heard on 4 and 5 April – although the judgment is unlikely to be handed down for several weeks – had “important implications” for many other disabled people, but his “primary concern” was to ensure that McDonald’s night-time care package was reinstated.

Her lawyers will be arguing that a council cannot be considered to have conducted a lawful assessment simply by reviewing a disabled person’s care package.

They will also argue that refusing to provide night-time care and forcing McDonald to wear incontinence pads was a breach of her human rights to dignity and to a private and family life, while the council also discriminated against her under the DDA.

Joy said the Supreme Court hearing would be the first time the country’s highest court had looked at the issues surrounding community care provision for about 10 years.

31 March 2011