R (on the application of McDonald) (Appellant) v Royal Borough of Kensington and Chelsea (Respondent)

This summary which was written following the 2014 unsuccessful appeal to the Eur0pean Court of Human Rights has been taken from the Disability Rights UK site

Review of care needs - cheaper alternative
This European Court decision concerns the right of a local authority to withdraw or amend care support where the recipient's circumstances are unchanged but where a cheaper alternative is available.

The case involved Elaine McDonald, age 67, who had a stroke in 1999 and needs support to continue living on her own in her Earl's Court flat. She has both mobility problems and problems with her bladder which mean she needs to use the toilet frequently at night.

In 2008, she fell and broke her hip and was assessed by Kensington and Chelsea as having an eligible need for support both during the day and "assistance at night to use the commode".

Once an "eligible" need is determined, a local authority must, by law, provide services to meet that need. Initially Kensington and Chelsea provided a sleep-in care worker for seven nights a week but later (December 2008) decided that it could save £22,000 a year by supplying Ms McDonald with incontinence pads for use at night and cutting care support to four-nights-a-week.

The High Court judgment
The case was taken to the High Court which found that Kensington and Chelsea Council were entitled to meet Ms McDonald’s need in a more economical manner, such as by the provision of pads.

The Court of Appeal judgement
The Court of Appeal heard the case as McDonald, R (on the application of) v Royal Borough of Kensington & Chelsea [2010] EWCA Civ 1109 (13 October 2010). The Court held Kensington and Chelsea to have been in breach of their statutory duty but that since the December 2008 decision was not in fact put into operation, and since the need had been reassessed in the Care Plan Reviews of November 2009 and April 2010, the appellant had no substantial complaint.

The Supreme Court decision
The Supreme Court decision, R (on the application of McDonald) (Appellant) v Royal Borough of Kensington and Chelsea (Respondent), upheld the Court of Appeal decision.

This decision upholds a council's right to amend a care plan where a cheaper alternative is available. The key is whether the alternative is suitable. In this case the Court thought that it was.

In September 2011, all night-time care was withdrawn.

The European Court decision
In McDonald v. the United Kingdom ECHR 141 (2014) the court decided that during the period from 21 November 2008 to 4 November 2009 the reduction in Ms McDonald’s care allowance on the basis that she could use incontinence pads at night had interfered with her right to respect for her family and private life under Article 8 of the Convention.

However, from 4 November onwards the Court found that both the local authority (via regular care reviews) and the national courts (including the Court of Appeal and the Supreme Court) had balanced Ms McDonald’s need for care with its social responsibility for the well-being of other care-users in the community at large.

Therefore the interference with her right to respect for private life had been both proportionate and justified as “necessary in a democratic society” and the Court rejected this part of her complaint as inadmissible.

Article 41 allows ‘just satisfaction’ to the injured party where there has been a violation of the Convention or the Protocols and the domestic law of the State concerned does not allow complete reparation to be made. In this case the Court held that the United Kingdom was to pay Ms McDonald 1,000 euros (EUR) in respect of non-pecuniary damage and EUR 9,500 to cover the costs and expenses of her lawyer.

Although the ruling can be seen as a failure for the appellant it is important in establishing that a failure to consider a person’s dignity can be a breach of human rights, which may lead to other challenges on this issue in future. See the article Withdrawal of nighttime care breached disabled woman’s human rights published by Doughty Street Chambers.

Note Also

This judgment - see para 33 is also cited as authority for the argument that local authority decisions are not to be read like pleadings and should be treated as written by non lawyers. - Lord Dyson said that their reports should be construed in a practical way, with the aim of seeking to discover their true meaning. This will often be relied on by counsel for local authorities in asserting that what appear to be unlawful statements or passages in decisions should not be take literally and should be interpreted as meaning what counsel would prefer that they had said.

This is a similar approach to that taken by Lord Neuberger in Holmes Moorehouse in the Supreme Court

  1. However, a Judge should not adopt an unfair or unrealistic approach when considering or interpreting such review decisions. Although they may often be checked by people with legal experience or qualifications before they are sent out, review decisions are prepared by housing officers, who occupy a post of considerable responsibility and who have substantial experience in the housing field, but they are not lawyers. It is not therefore appropriate to subject their decisions to the same sort of analysis as may be applied to a contract drafted by solicitors, to an Act of Parliament, or to a court's judgment.


Supreme Court Web Site

European court decision press release


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