Court case on support is landmark for human rights

A disabled woman was today set to ask a court to prevent a council cutting the support she needs to maintain her dignity, in a case with vital human rights implications for disabled people receiving care.

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

Douglas Joy, a senior solicitor with Disability Law Service, which is conducting McDonald’s case with funding from the Equality and Human Rights Commission, said the court would decide whether she has a right to dignity under the Human Rights Act.

McDonald, a former principal ballerina with the Scottish Ballet, became disabled following a stroke in 1999 and needs support because of problems with strength, mobility, vision and spatial awareness.

She had been provided with a weekly package of 22.5 hours of daytime support and another 10 hours of care four nights a week, worth a total of £703.59 per week.

Her council needs assessment found that nighttime care was essential to provide supervision to prevent her falling while using the commode during the night, due to a bladder condition.

But in December 2008, the council said it would cut her care package, saying she could be given incontinence pads instead of an overnight care worker, even though she is not incontinent.

In March 2009, a high court judge refused McDonald permission for a judicial review of the council’s decision, ruling that the issue was one of safety, and that incontinence pads would safeguard her from risk by ensuring she did not have to repeatedly use a commode during the night.

But following a successful appeal, McDonald was given permission for a judicial review of the council’s decision at the court of appeal, with Lord Justice Laws stating the case was “arguable and important”.

Her full support package has been maintained until her case is resolved.

Joy said: “We have come across other local authorities that have relied on the original high court case and cottoned on to this [argument] that all you need to do is safeguard. Hopefully, if we are successful it will right the wrong.”

McDonald’s lawyers were set to argue that the council’s decision to cut her nighttime support would breach her right to respect for her private life under article eight of the Human Rights Act.

They were also set to argue that her need under the Chronically Sick and Disabled Persons Act is for assistance to use the commode at night, rather than an underlying need to be “kept safe”.

And they were expected to say that McDonald has been discriminated against under the Disability Discrimination Act.

A council spokesman said: “When the judgement comes out we will be in the best position to comment.”

The court was expected to reserve judgement until a future date.

29 April 2010