Home » United Kingdom » Supreme Court Cases » R (on the application of McDonald) v Royal Borough of Kensington and Chelsea

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

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

before

Lord Walker
Lady Hale
Lord Brown
Lord Kerr
Lord Dyson

JUDGMENT GIVEN ON

6 July 2011

Heard on 4 and 5 April 2011

Appellant
Stephen Cragg
Stephen Broach
(Instructed by Disability Law Service)		Respondent
Kelvin Rutledge
Sian Davies
(Instructed by Royal Borough of Kensington and Chelsea Legal Services)
Intervener (Age UK)
Ian Wise QC
(Instructed by Irwin Mitchell LLP)
 

LORD BROWN

Introduction

  1. Ill health can be dreadfully cruel. Some 30 years ago the appellant was the prima ballerina of Scottish Ballet. Alas, in September 1999 (then aged 56) she suffered an incapacitating stroke leaving her with severely limited mobility and other disabilities besides. In April 2006 she fell heavily and broke her hip in several places, remaining in hospital for four months. She then suffered two further falls each leading to further hospitalisation. The problem at the centre of these proceedings, however, is that the appellant suffers also from a small and neurogenic bladder which makes her have to urinate some two to three times a night. Up to now she has dealt with this by accessing a commode with the help of a carer provided by the respondent Royal Borough as part of a package of care services to ensure her safety. For some years past, however, the respondents have been proposing instead that the appellant should use incontinence pads or special sheeting (hereafter “pads”) which would avoid the need for a night-time carer. The respondents say that this would provide the appellant with greater safety (avoiding the risk of injury whilst she is assisted to the commode), independence and privacy, besides reducing the cost of her care by some £22,000 per annum. The appellant, however, is appalled at the thought of being treated as incontinent (which she is not) and having to use pads. She considers this an intolerable affront to her dignity. Whether night-time care can be provided on this revised basis is the critical issue in these proceedings.

The history of the proceedings

  1. The respondents’ decision to reduce the sum allocated to the appellant’s weekly care was communicated by letter dated 21 November 2008 and was sought to be challenged by the appellant’s judicial review application made on 22 December 2008. The application came before Frances Patterson QC sitting as a Deputy High Court Judge in the Administrative Court on 5 March 2009 at a “rolled up hearing” (the application for permission and substantive inter-partes hearing being dealt with together), at the end of which permission was refused. A Needs Assessment dated 2 July 2008, completed on 28 October 2008, on which the impugned decision had been based, had described the appellant’s needs as “assistance to use the commode at night” and the deputy Judge resolved in the respondent’s favour what she described as the “very narrow” issue arising, namely whether that need fell to be read literally or whether, as the respondents contended, it was permissible to examine its underlying rationale and treat it as a need for safe

urination at night. Given that it was the latter, the deputy judge held that it was open to the respondents to meet that need in the more economical manner, ie by the provision of pads. Article 8 of the European Convention on Human Rights had also been invoked, but not as a freestanding ground of challenge.

  1. Permission to apply for judicial review having thereafter been granted by a single Lord Justice, and the case reserved to the Court of Appeal, the substantive challenge came before Rix LJ, Wilson LJ and Sir David Keene on 29 April 2010. At the Court of Appeal hearing the arguments were expanded. The respondents sought to rely not only on their Needs Assessment of 2 July 2008 but additionally upon their subsequent Care Plan Reviews of 4 November 2009 and 15 April 2010. The appellant for her part again sought to invoke article 8 (this time, submits Mr Cragg, wrongly understood by the Court to be again merely ancillary to the appellant’s primary ground), and for the first time sought also to rely on section 21E of the Disability Discrimination Act 1995 (“the DDA 1995”), as inserted by section 2 of the Disability Discrimination Act 2005.
  1. By their reserved judgment dated 13 October 2010 the Court of Appeal disagreed with the deputy judge that the Needs Assessment of 2 July 2008 could properly be understood as a need for the management of the appellant’s night-time urination rather than (as the “deliberately chosen” language of the assessment put it: para 49) as “assistance to use the commode at night”, so that, at the time when the proceedings were commenced, the Court of Appeal held the respondents to have been in breach of their statutory duty. But the court held 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 court also rejected the appellant’s claims under article 8 and under the DDA 1995. Rix LJ gave the only reasoned judgment: [2010] EWCA Civ 1109, (2010) 13 CCL Rep 664.

The issues before this Court

  1. Four issues are identified by the parties as arising for decision on this appeal:
  1. Was the Court of Appeal correct to hold that the 2009 and 2010 Care Plan Reviews are to be read as including a reassessment of the appellant’s community care needs?
  2. Did the respondents’ decision to provide pads interfere with the appellant’s article 8 rights and, if so, was such an interference justified and proportionate?
  1. Were the respondents operating any relevant policy or practice for the purposes of section 21E(1) of the DDA 1995 and, if so, was this policy justified as a proportionate means of achieving a legitimate aim, namely the equitable allocation of limited care resources?
  1. Have the respondents failed to have due regard to the needs specified in section 49A of the DDA 1995 (“the general disability equality duty”) when carrying out their functions in this case? (The appellant needs the court’s leave to raise this issue, permission to invoke section 49A having been refused by a single Lady Justice before the Court of Appeal hearing and not sought afresh from that court.)

Issue One – the 2009/2010 Care Plan Reviews

  1. With regard to the first three issues – and, indeed, the entire framework of this appeal, both factual and legal – I really cannot hope to improve upon Rix LJ’s judgment below. I could, of course, lengthen it: one can always do that. But I prefer instead to refer any interested reader to it and to confine myself to a substantially shorter summary of the reasons why for my part I agree with its conclusions. I cannot, however, escape a brief recitation of the main legal provisions governing care arrangements. I shall start with section 47 of the National Health Service and Community Care Act 1990 (“NHSCCA 1990”) since it is common ground here that (i) the appellant is “substantially and permanently handicapped” within the meaning of section 29(1) of the National Assistance Act 1948 (“NAA 1948”), (ii) the respondents are required under that section to make arrangements for promoting her welfare, (iii) the respondents are satisfied that it is necessary in order to meet the appellant’s needs to make arrangements for “the provision of practical assistance” for her in her own home within the meaning of section 2(1)(a) of the Chronically Sick and Disabled Persons Act 1970 (“CSDPA 1970”), and (iv) the respondents are accordingly pursuant to that section under a duty to make those arrangements, acting under the Secretary of State’s general guidance issued pursuant to section 7(1) of the Local Authority Social Services Act 1970 (“LASSA 1970”).
  1. Section 47 of NHSCCA 1990 provides:

“(1) . . . where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority –

  1. shall carry out an assessment of his needs for those services; and
  1. having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services. . . .

“(4) The Secretary of State may give directions as to the manner in which an assessment under this section is to be carried out or the form it is to take but, subject to any such directions . . ., it shall be carried out in such manner and take such form as the local authority consider appropriate.”

  1. Before turning to the Secretary of State’s guidance issued under section 7(1) of LASSA 1970 (the Fair Access to Care Services (FACS) Guidance) and directions issued under section 47(4) of NHSCCA 1990, I should say a word about the relevance of a local authority’s social care resources both to the assessment of the handicapped person’s needs and to the way in which such assessed needs may then be met. It was decided by the House of Lords in R v Gloucestershire County Council Ex p Barry [1997] AC 584 (by a majority of three to two) that need within the meaning of section 2(1) of CSDPA 1970 is a relative concept and that “needs for services cannot sensibly be assessed without having some regard to the cost of providing them. A person’s need for a particular type or level of service cannot be decided in a vacuum from which all considerations of cost have been expelled.” (Lord Nicholls of Birkenhead, at p 604). The position now established is that the local authority are under a duty to make an assessment of needs under section 47(1)(a) of NHSCCA 1990 and in doing so may take account of their resources. Assuming, as in the present case, that the need falls into one of the four bands – “critical”, “substantial”, “moderate” or “low” as described in the FACS Guidance

– which, having regard to their resources, the local authority have indicated that they will meet, then meet it they must, although in deciding how to do so they are once again entitled to take account of their resources. None of this, I may say, was in dispute before us; least of all did the appellant suggest that we might like to revisit the decision in Barry, controversial though at the time that was.

  1. I come then to the FACS Guidance issued on 1 January 2003 – which remained in force until fresh guidance (for present purposes not materially different) was issued in February 2010. Amongst its most directly relevant passages are these: “Councils should ensure that . . . within a council area,

individuals in similar circumstances receive services capable of achieving broadly similar outcomes” (paras 1 and 54); “Reviews should be undertaken at regular intervals to ensure that the care provided to individuals is still required and achieving the agreed outcomes. These reviews should include a re-assessment of an individual’s needs” (para 4); under the heading “General principles of assessment”, “it is important for assessment to be rounded and person-centred and for the evaluation of assessment information to lead to appropriate eligibility decisions and services that promote independence” (para 35) and “the evaluation of risks should focus on the following aspects that are central to an individual’s independence: autonomy and freedom to make choices, health and safety including freedom from harm, abuse and neglect … , the ability to manage personal and other daily routines, involvement in family and wider community life . . .” (para 40); under the heading “Reviews”, “Reviews should: establish how far the services provided have achieved the outcomes, set out in the care plan, re-assess the needs and circumstances of individual service users, help determine individuals’ continued eligibility for support, confirm or amend the current care plan . . .” (para 58), “the re-assessment part of the review should follow the general principles of assessment in this guidance” (para 59), “reviews should be scheduled at least annually or more often if individuals’ circumstances appear to warrant it” (para 60).

  1. Finally before returning to the facts of the present case I should note the following paragraphs within the Secretary of State’s Directions – the Community Care Assessment Directions 2004 – issued under section 47(4) of NHSCCA 1990:

“2(2) The local authority must consult the person, consider whether the person has any carers and, where they think it appropriate, consult those carers.

2(3) The local authority must take all reasonable steps to reach agreement with the person and, where they think it appropriate, any carers of that person, on the community care services which they are considering providing to him to meet his needs.”

  1. The care plan reviews of 4 November 2009 and 15 April 2010 are both lengthy documents, the latter extending to 15 pages. The following brief quotations from the 2010 review (in large part foreshadowed in the 2009 review) must suffice:

“Toileting/Substantial Risk: Ms McDonald has been diagnosed with having a neurogenetic bladder, which makes [her] want to go to the toilet more frequently. Ms McDonald needs assistance to access the

toilet during the day, and if she uses it at night. Ms McDonald and the carers confirm that she needs to go to the toilet two to three times during the night.   . . . no issues were raised about the need to open her bowels at night. Ms McDonald did not want to discuss the option of using incontinence pads or Kylie sheets as a way of meeting her toileting needs. Ms McDonald said that she is not incontinent and has repeatedly said that she is opposed to wearing a pad to meet her toileting needs. Ms McDonald became angry and upset when discussing this. As Ms McDonald has not consented to a referral to the Continence Service, it has not been possible to fully explore how all of her needs can best be managed. . . .

Conclusion: Ms McDonald continues to live safely at home. There have been no hospital admissions since she was discharged in early 2007. Ms McDonald has chosen not to take up the offer of assistive technology to help monitor her safety, has declined the offer of moving to one of the borough’s extra care sheltered housing schemes and she has to date refused to consider incontinence pads as a means to manage risk when she cannot safely get to the commode unaided. .

. . it remains social services’ view that the use of incontinence pads is a practical and appropriate solution to Ms McDonald’s night-time toileting needs. . . .

I remain of the opinion that Ms McDonald’s need to be kept safe from falling and injuring herself can be met by the provision of equipment (pads and/or absorbent sheets). She has, however, consistently refused this option, refusing even to try the pads or to discuss the absorbent sheet option. I am aware that she considers pads and/or sheets to be an affront to her dignity. Other service users in my experience have held similar views when such measures were initially suggested but once they have tried them, and been provided with support in using them, they have realised that the pads/sheets improve quality of life by protecting them from harm and allowing a degree of privacy and independence in circumstances which, as a result of health problems, are less than ideal. The practicalities can be managed within the existing care package to accommodate Ms McDonald’s preferred bedtime and to allow her to be bathed in the morning and/or have sheets changed. If Ms McDonald were willing to try this option, she might similarly alter her views.”

  1. In the light of those passages from the reviews and the Secretary of State’s FACS Guidance and Directions it seems to me impossible to disagree with Rix LJ’s conclusion on this first issue:

“53. In my judgment, the 2009 and 2010 reviews are to be read as including a reassessment of Ms McDonald’s needs. It is irrelevant that there has been no further separate ‘Needs Assessment’ document. Such a document is not, it seems, necessary in the first place, because a care plan could incorporate a needs assessment; but in any event FACS itself contemplates that a care plan review will incorporate a review of assessed needs. As for the 2009 and 2010 reviews in this case, it is noticeable that they no longer assess Ms McDonald’s needs as including assistance to access the commode at night, although they recognise that that is what Ms McDonald wants. On the contrary, they refer to Ms McDonald’s night-time toileting needs in much more general terms (as the earlier needs assessments had at one time done). Thus they speak of ‘need for support at night’ and that the ‘need should be managed through the use of incontinence pads’. They specifically consider that the elimination of the risk of injury is best achieved by avoiding a transfer to the commode, and that Ms McDonald’s desire for independence and privacy is best accommodated by dispensing with a night-time carer. Ms McDonald needs assistance safely to access the toilet only if she uses it at night, but, with the use of pads there is no need for such use. The issue is whether pads should be used or not ‘to meet her toileting needs’. The use of pads is ‘a practical and appropriate solution to Ms McDonald’s night-time toileting needs’. Ms McDonald did not want to discuss the use of pads ‘as a way of meeting her toileting needs’. Her ‘need to be kept safe from falling and injuring herself can be met by the provision of equipment”.

  1. I would add that to my mind the respondents could hardly have gone further in compliance with the Secretary of State’s Directions in their efforts to consult the appellant and if possible agree with her the services they were considering providing to meet her needs. The 2010 Review rightly described the appellant’s position on this as “entrenched” and the situation reached as an “impasse”. The respondents also fully consulted the appellant’s partner, Mr McLeish who, although not in fact her carer – indeed, he himself has experienced health problems and is no longer actually living with her – for a time assisted with her night-time needs.
  1. Before leaving issue one, I should just note that, as I understood Mr Cragg’s argument, it was no part of the appellant’s case that the respondents were not entitled under domestic legislation to re-assess her need as “night-time toileting need” or “need for safe urination at night” or some equivalent designation, and to meet such need, as proposed, by pads (together with whatever further assistance might be advised following the proposed referral of the appellant to the Continence Service). Rather the case, as clearly reflected in the terms in which issue one has

been formulated, is that the 2009 and 2010 reviews in fact contained no such reassessment so that the respondents remained bound to continue the same care provision as had been made under the differently worded 2008 needs assessment. I add for good measure that in any event I am clear that there can be no objection under domestic law (leaving aside the other issues) to the respondents identifying and meeting the appellant’s night-time needs in the manner proposed.

Issue Two – Article 8

  1. Article 8 is too well known to require citation again here. There is no dispute that in principle it can impose a positive obligation on a state to take measures to provide support and no dispute either that the provision of home-based community care falls within the scope of the article provided the applicant can establish both (i) “a direct and immediate link between the measures sought by an applicant and the latter’s private life” – Botta v Italy (1998) 26 EHRR 241, paras 34 and 35 – and (ii) “a special link between the situation complained of and the particular needs of [the applicant’s] private life”: Sentges v The Netherlands (2003) 7 CCLR 400, 405.
  1. Even assuming that these links do exist, however, the clear and consistent jurisprudence of the Strasbourg Court establishes “the wide margin of appreciation enjoyed by states” in striking “the fair balance . . . between the competing interests of the individual and of the community as a whole” and “in determining the steps to be taken to ensure compliance with the Convention”, and indeed that “this margin of appreciation is even wider when . . . the issues involve an assessment of the priorities in the context of the allocation of limited state resources” – Sentges, at p 405, Pentiacova v Moldova (Application No 14462/03 (unreported) 4 January 2005, p 13) and Molka v Poland (Application No 56550/00 (unreported) 11 April 2006, p 17). Really one only has to consider the basic facts of those three cases to recognise the hopelessness of the article 8 argument in the present case. Sentges (considered by Rix LJ at para 64 of his judgment) concerned a sufferer from muscular dystrophy complaining of a refusal to supply him with a robotic arm. Without it he depended on others for every single act and so was unable to develop and establish relationships with others; with it, his “severely curtailed level of self- determination would be increased”: 7 CCLR 400, 404. The applicants in Pentiacova suffered from renal failure and complained of insufficient funding for their haemodialysis treatment. The applicant in Molka was confined to a wheelchair and, for want of positive assistance, was unable to vote in local elections. The complaints in all three cases were unanimously held to be manifestly ill-founded and thus inadmissible.
  1. This approach is consistent too with the domestic jurisprudence on the point. The appellant seeks to rely on R (Bernard) v Enfield London Borough

Council [2002] EWHC 2282 (Admin); [2003] HRLR 111; [2003] LGR 423

(considered by Rix LJ at para 63 of his judgment). But really what is striking about Bernard is the contrast between that case and this. The claimants there were husband and wife. They had six children. The wife was severely disabled and confined to a wheelchair. In breach of their duty under section 21(1)(a) of NAA 1948, the respondent council failed for some 20 months to provide the family with accommodation suited to her disability. The consequences were appalling. The wife was doubly incontinent and, because there was no wheelchair access to the lavatory, was forced to defecate and urinate on the living-room floor. And she was unable to play any part in looking after her six children. Small wonder that Sullivan J, at para 31, described the article 8 case as “not finely balanced” and awarded £10,000 damages.

  1. The leading domestic case on the positive obligation to provide welfare support under article 8 is Anufrijeva v Southwark London Borough Council [2004] QB 1124; [2003] EWCA Civ 1406. It concerned three separate asylum-seekers, one complaining of a local authority’s failure to provide accommodation to meet special needs, the other two of maladministration and delay in the handling of their asylum applications. All three failed in their claims. Giving the judgment of the court, Lord Woolf, CJ observed (at para 33) that: “It is not possible to deduce from the Strasbourg jurisprudence any specific criteria for the imposition of such a positive duty [ie the duty ‘to provide positive welfare support’]”. At para 43, however, the court concluded that Bernard was rightly decided – “family life [having been] seriously inhibited by the hideous conditions prevailing in the claimants’ home” – but that:
See also  R (on the application of Gujra) (FC) v Crown Prosecution Service

“We find it hard to conceive . . . of a situation in which the predicament of an individual will be such that article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage article 3. Article 8 may more readily be engaged where a family unit is involved. Where the welfare of children is at stake, article 8 may require the provision of welfare support in a manner which enables family life to continue.” (Bernard was said to illustrate that.)

  1. There is, of course, a positive obligation under article 8 to respect a person’s private life. But it cannot plausibly be argued that such respect was not afforded here. As already indicated, the respondents went to great lengths both to consult the appellant and Mr McLeish about the appellant’s needs and the possible ways of meeting them and to try to reach agreement with her upon them. In doing so they sought to respect as far as possible her personal feelings and desires, at the same time taking account of her safety, her independence and their own responsibilities towards all their other clients. They respected the appellant’s human dignity and autonomy, allowing her to choose the details of her care

package within their overall assessment of her needs: for example, the particular hours of care attendance, whether to receive direct payments in order to employ her own care assistant, and the possibility of other options like extra care sheltered housing. These matters are all fully covered in paras 5, 42 and 66 of Rix LJ’s judgment below. Like him, I too have the greatest sympathy for the appellant’s misfortunes and a real understanding of her deep antipathy towards the notion of using incontinence pads. But I also share Rix LJ’s view that the appellant cannot establish an interference here by the respondents with her article 8 rights. I add only that, even if such an interference were established, it would be clearly justified under article 8(2) – save, of course, for the period prior to the 2009 review when the respondents’ proposed care provision was not “in accordance with the law” – on the grounds that it is necessary for the economic well-being of the respondents and the interests of their other service-users and is a proportionate response to the appellant’s needs because it affords her the maximum protection from injury, greater privacy and independence, and results in a substantial costs saving.

Issue Three – Section 21 of the DDA 1995

  1. All the relevant parts of section 21 are to be found set out in Rix LJ’s judgment below (at para 68) and need not be repeated – all, that is, save for section 21D(5) (referred to in section 21D (2)(b)):

“Treatment, or a failure to comply with a duty, is justified under this subsection if the acts of the public authority which give rise to the treatment or failure are a proportionate means of achieving a legitimate aim.”

  1. Mr Cragg’s argument under these provisions, if I understand it, is that, in substituting incontinence pads for a night-time carer to meet the appellant’s night- time toileting need, the respondents are manifesting or applying “a practice, policy or procedure which makes it – (a) impossible or unreasonably difficult for disabled persons to receive any benefit that is or may be conferred, or (b) unreasonably adverse for disabled persons to experience being subjected to any detriment to which a person is or may be subjected, by the carrying-out of a function by the authority” within the meaning of section 21E(1), so that, as provided by section 21E(2), it is their duty “to take such steps as it is reasonable, in all the circumstances of the case, for the authority to have to take in order to change that practice, policy or procedure so that it no longer has that effect”. If that be right, then, by virtue of section 21D(2)(a) and 21B(1), a failure to comply with that duty constitutes unlawful discrimination by the respondents against the appellant unless the respondents can show pursuant to section 21D(2)(b) that this failure is justified

under section 21D(5), namely that its acts are “a proportionate means of achieving a legitimate aim”.

  1. The argument to my mind is hopeless. In the first place I find it impossible to regard the respondents’ decision in this case as the manifestation or application of anything that can properly be characterised as a “practice, policy or procedure” within the meaning of this legislation. Rather, in taking the impugned decision, the respondents were doing no more and no less than their statutory duty as fully described under issue one above. Secondly, even were that not so, it follows from all that I have already said (not least with respect to article 8(2)) that the respondents’ acts here must be regarded as constituting “a proportionate means of achieving a legitimate aim” within the meaning of section 21D(5) (even assuming that there were otherwise steps which it would have been reasonable for them to take to change their practice, policy or procedure within the meaning of section 21E(2)). Here again, therefore, I agree with the views of the court below except only that, whereas Rix LJ was merely “sceptical as to whether any relevant policy or practice for the purposes of section 21E(1) exists in this case” (para 73), I am clear that it does not.

Issue Four – Section 49A of the DDA 1995

  1. Having permitted Mr Cragg to advance his section 49A argument, it must be dealt with albeit not at any great length. So far as material, under the heading “General duty”, section 49A provides:

“(1) Every public authority shall in carrying out its functions have due regard to –

. . .

  1. the need to promote equality of opportunity between disabled persons and other persons;
  1. the need to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons; . . .”.

As Dyson LJ held in an analogous context in R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141; [2008] LGR 239, “due regard” here means “appropriate in all the circumstances” – see too in this

regard R(Brown) v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening) [2008] EWHC 3158 (Admin); [2009] PTSR 1506. It is Mr Cragg’s submission that, no express reference to section 49A being found in the respondent’s documentation in this case, it is to be inferred that, in determining how to assess and meet the appellant’s needs, they failed in their general duty under this section.

  1. This argument too is in my opinion hopeless. Where, as here, the person concerned is ex-hypothesi disabled and the public authority is discharging its functions under statutes which expressly direct their attention to the needs of disabled persons, it may be entirely superfluous to make express reference to section 49A and absurd to infer from an omission to do so a failure on the authority’s part to have regard to their general duty under the section. That, I am satisfied, is the position here. The question is one of substance, not of form. This case is wholly unlike Pieretti v Enfield London Borough Council [2010] EWCA Civ 1104; [2011] PTSR 565 (which held that the section 49A duty complements a housing authority’s duties to the homeless under Part 7 of the Housing Act 1996).
  1. For the sake of completeness I should just add that both section 21 and section 49A of the DDA 1995 have now been superseded by broadly comparable provisions in the Equality Act 2010.
  1. I would dismiss this appeal.
  1. Since writing the above I have read the judgments of both Lady Hale and Lord Walker. I cannot but agree with everything that Lord Walker says. I add only that it seems to me, with great respect to Lady Hale’s acknowledged expertise in social care law, particularly surprising to find her saying (in para 77) that logically, on the majority’s view, the local authority could properly withdraw care “even though the client needed to defecate during the night and thus might be left lying in her faeces until the carers came in the morning” or, indeed, “withdraw this help during the day.” One might just as well say that logically, on Lady Hale’s approach, it would be irrational not to supply a night carer to take the client to the commode, irrespective of cost, if there is any likelihood of the client having to urinate even once during the night. The true position is that the decision is one for the local authority on the particular facts of the case and, on the particular (and undisputed) facts here, it is nothing short of remarkable to characterise the respondents’ decision as irrational. As to the cost, Lady Hale says (at para 74) that “it might well have been open to the local authority . . . to provide her with the sort of night time care that she was asking for . . . in one of the Extra Care Sheltered Housing Schemes in the borough.” As, however, may be seen from the “Conclusion” to the borough’s 2010 review (quoted in para 11 above), the appellant “has declined the offer of moving to one of the borough’s extra care

sheltered housing schemes.” In other words, the appellant specifically refused that very solution which Lady Hale mentions.

LORD WALKER

  1. I agree with Lord Brown and Lord Dyson that this appeal should be dismissed, for the reasons given in their judgments, which address the issues which were argued before the court. But I feel bound to say something about the dissenting judgment of Lady Hale. Having expressed the view that the appeal has focused on a narrow issue which is not a point of law of general public importance, she makes some strongly-worded observations on an issue – Wednesbury irrationality – which was not referred to in the agreed statement of facts and issues, and was not argued by Miss McDonald’s counsel. It was raised only in a single paragraph of the written submissions on behalf of the intervener, Age UK.
  1. Lady Hale states that the idea that anyone should be obliged to go into a care home in order to be treated with ordinary dignity is extraordinary. Leaving aside the problems of managing functional incontinence in care homes (which are addressed in paras 37 to 46, and in particular para 39, of the witness statement of Mr Harrop, the Director of Policy and Public Affairs at Age UK), I can see no evidence that the respondent (“RBKC”) is not well aware of Miss McDonald’s right to have her dignity respected. She is a courageous and determined lady and RBKC’s Adult Social Care Department have tried hard to find a solution to her problems. In successive reviews and assessments they have fully and fairly recorded her feelings and wishes, even when those show antipathy towards RBKC. They have invited her to choose how to deploy, in terms of timing and duration of visits, the weekly sum of £450 available for carer’s visits. In 2008 they offered to put her in touch with the Home Share Scheme, under which someone such as a female student might have given Miss McDonald help at night in return for rent- free accommodation, but she declined because she did not want a stranger living in her house. In 2010 they offered her a move to one of RBKC’s Extra Care Sheltered Housing schemes, but Miss McDonald did not want to consider this.
  1. Miss McDonald is not incontinent. She can control her bodily functions, but she does need to urinate, sometimes quite frequently, during the night. But paragraphs 74 to 78 of Lady Hale’s judgment, agreeing with Age UK’s argument that RBKC have been “irrational in the classic Wednesbury sense”, seem to me to ignore completely the evidence of Mr Thomas Brown, the very experienced Head of Assessment at RBKC’s Adult Social Care Department. In his second witness statement dated 22 September 2009 he stated (paragraphs 11-12):

“The court should be aware that the solution of incontinence pads in a case of this nature is not exclusive to RBKC, nor did the suggestion that the claimant should wear them originate from social services, as my previous statement makes clear. In my experience the use of incontinence pads for patients who are not clinically incontinent is both widespread and accepted practice in the provision of social services.

Whilst RBKC accepts that the claimant is not clinically incontinent of urine, it is important to emphasise that her difficulty is that, due to impaired mobility, she cannot safely transfer from bed to a commode at night. In practical terms this presents substantially the same problems as a person who is incontinent. A person with this condition is often described as ‘functionally incontinent’” . . .

He then referred (in a passage which seems to have some words missing) to the website of the St Helens and Knowsley Teaching Hospitals NHS Trust.

  1. In his third witness statement dated 16 April 2010 Mr Brown stated (paragraphs 13-16):

“It is my experience based on 16 years in social care (most of them working with older people) and another four years working in a large general hospital that, in medical and residential care settings, it is general practice in the management of functional incontinence to use night-time incontinence pads or absorbent sheets as a means of enduring safety in patients/residents with severely compromised mobility. This management technique was suggested to the council by the claimant’s GP Dr Parameshwaran on 19 September 2006 and also by the district nursing service, and the suggestion is consistent with my own knowledge of the care management of such persons.

The management plan would remain the same if the claimant needs to pass faeces at night, although good practice would be to encourage toileting last thing at night when her night-time carer visits and to encourage appropriate dietary changes. The need for morning bathing will arise whether or not faeces are passed at night and it is practical within the care package offered by the council. It should be noted that the need to pass faeces at night was not raised as an issue at the most recent review held in March 2010.

I am aware of guidance (DOH 2000) to the effect that incontinence pads should not be offered ‘prematurely’ in order to prevent dependence on them. I am also aware that aids and adaptations should be explored before such an option is considered. Unfortunately the claimant’s situation is such that there is no equipment or adaptation which will enable her to access the toilet or commode without assistance. In any event any movement, even assisted, carries a risk to the claimant’s safety. The primary care need of the claimant is to ensure her safety by protecting her from the risk of further falls, and I remain of the view that the use of night-time pads and/or absorbent sheets maximises the claimant’s safety.

Having regard to the guidance and to the particular circumstances of the claimant as well as to the cost indications of the care options, I remain satisfied that the use of continence products is appropriate notwithstanding the claimant’s objections. I note her concerns about privacy and dignity and about the need to maintain her relationship with her partner. It is the council’s view that the use of continence products provides greater privacy and dignity than the presence of a carer assisting with personal and intimate functions at night-time.”

Miss McDonald strongly differs from this view, and so may others. But I do not see how it could possibly be regarded as irrational.

  1. It will be noted that in his last witness statement Mr Brown referred to a possible need to pass faeces at night, but noted that it had not been raised as an issue at the most recent review. In view of this I find it rather regrettable that Lady Hale’s judgment makes so many references to defecation. She says, at the end of para 77, that the consequences (of what she describes as the logical implications of the majority decision) do not bear thinking about. But in this case we do have to think about urine and faeces. For an adult to use incontinence pads for urination may be quite unpleasant for both the user and the carer, but most people would agree that it is a good deal less unpleasant and undignified than their use for defecation. I totally disagree with, and I deplore, Lady Hale’s suggestion that the decision of the majority would logically entitle a local authority to withdraw help from a client so that she might be left lying in her faeces day and night, relieved only by periodic changes of absorbent pads or sheets.
  1. On top of her other misfortunes Miss McDonald has had to have some very personal and private matters aired at public hearings in court. I am sorry to add anything more to that, but I think it should be recorded that according to the very full documentary evidence Miss McDonald has not complained of bowel trouble

since an episode about five years ago, when her general health was very frail. As already noted, she did not raise any issue about this at her last assessment. It is true that in her witness statements she did refer to the possibility of “sitting around in my own urine or faeces” but the latter point was not relied on or even mentioned by her counsel at the appeal hearing. Only counsel making written submissions on behalf of Age UK, saw fit to give it prominence both in the first paragraph and in the last paragraph of his written submissions.

LORD KERR

  1. Not without regret, I agree that this appeal must be dismissed but I have formed a somewhat different view on the first issue than that expressed by Lord Brown and Lord Dyson.
  1. I consider that the respondent authority did not purport to carry out a re- assessment of the appellant’s needs when it conducted the reviews of 4 November 2009 and 15 April 2010. The documents that these reviews generated are both entitled “Care Plan Review”. By contrast the assessments of the appellant’s needs which were conducted in February and July 2008 were recorded on forms with the heading, “Needs Assessment”. The Care Plan that was carried out in November 2008 contained a section in which the appellant’s needs were specified and particulars were given as to how those needs were to be met. There is nothing in the forms of 4 November 2009 and 15 April 2010 which suggests that an assessment of the appellant’s needs was being undertaken on either occasion.
  1. Rix LJ in para 53 of his judgment (quoted by Lord Brown in para 12 above) stated that the 2009 and 2010 reviews “are to be read as including a reassessment of Ms McDonald’s needs”. If by this Rix LJ meant that the respondent had carried out a re-assessment of Ms McDonald’s needs, I would, with respect, disagree. In so far as there is any reference to her needs in the report of 4 November 2009, it is to the effect that they remained as before. See the passage from the report quoted by Lord Brown at para 11 – “Ms McDonald needs assistance to access the toilet during the day, and if she uses it at night”. The needs were therefore defined as being associated with access to the lavatory, in other words, difficulties with mobility. The same holds true for the report on the review on 15 April 2010. Again the only reference to needs in this report was in relation to mobility problems.
  1. The decision to change the care plan was not prompted by any change in the view about Ms McDonald’s needs but by the conclusion that the arrangements that were in place to meet the needs exceeded what was required. And this was the basis on which the case was presented both to the deputy High Court judge and the
See also  R (on the application of Faulkner) (FC) v Secretary of State for Justice (Respondent) and The Parole Board

Court of Appeal. The clinching document in this regard is a letter from the respondent to Ms McDonald dated 4 November 2010 which stated unequivocally that if Ms McDonald’s needs had not changed from the previous review, then generally a care plan review would take place. That was precisely what had happened in November 2009 and 15 April 2010. Clearly, if on those dates a re- assessment of needs was deemed necessary, a form of review different from that which took place on each of those occasions would have been undertaken and a different type of form would have been completed. The fact that in November 2009 and again in April 2010 a care plan review was undertaken (the very type of review which the November 2010 document stated was appropriate when there had been no change in the appellant’s needs) demonstrates clearly that it was not the intention of the respondent to carry out any re-assessment of the appellant’s needs on either date.

  1. In my opinion, therefore, the Court of Appeal’s decision can only be upheld on the basis that, although the respondent did not intend to carry out a re- assessment of the appellant’s needs on 4 November 2009 or 15 April 2010, in fact the exercise then conducted yielded sufficient information to allow the court to conclude that the appellant’s needs could properly be re-cast and warranted a change in the means by which those needs may legally be met.
  1. This is, at first sight at least, not an easy conclusion to reach. Ms McDonald’s needs were precisely the same as they had been when they were originally assessed. The change had come about not because there had been any authentic re-evaluation of what the appellant’s needs were but because it was felt necessary to adjust how those would be expressed in order to avoid undesired financial consequences. And one, somewhat absolutist, way of approaching the case is to say that the appellant is not incontinent. Incontinence pads are provided for use by those who are. She needs help to move and she needs to move during the night. Her needs are therefore related to her difficulty with mobility, not to a problem with incontinence. Properly understood, she needs help with movement, not services which eliminate the need to move. On this approach, the deputy High Court judge was wrong to describe the need as the safety of the claimant and the Court of Appeal was likewise wrong to describe the need as a need to urinate safely at night. Ms McDonald has no problem in urinating safely at night. She does not need assistance to do so. She does need to be helped to move to a place where she can urinate, however.
  1. After some hesitation, I have concluded that this is to take a rather too technical and inflexible approach to the issue. And I certainly do not think that it can be said that where the respondent has decided what needs are on one occasion, it is forever bound to that assessment. The essential question on the first issue, it seems to me, is whether “needs” partake partly of the means by which the disabilities of the appellant may be catered for, as well as the actual nature of the

disability and, on reflection, I think that this is the correct approach. In the Guidance on Eligibility Criteria for Adult Social Care document (issued by the Department of Health on 28 May 2002) the issues and problems that are identified when individuals contact, or are referred to, councils seeking social care support are defined as “presenting needs”. If needs are defined as the issues and problems that the particular individual presents, that would appear to open the way to taking a rather broader view of what needs means and includes not only the narrow connotation of needs but also how those needs may be met. On that basis, it can be said that the reviews in 2009 and 2010, although it was not their purpose, in fact involved a re-assessment of the appellant’s needs and that they may now be regarded as the need to avoid having to go to the lavatory during the night. Viewed thus, the needs can be met by the provision of incontinence pads and suitable bedding. Not without misgivings, I have therefore concluded that it was open to the respondent to re-assess the appellant’s needs, to re-categorise them as a need to avoid leaving bed during the night and to conclude that that need could be met by providing the appellant with the materials that would obviate the requirement to leave her bed. Although that is not the way in which the respondent actually dealt with the appellant’s case, this was no more than a technical failure on its part and is moreover one that could easily be overcome. Even if it can be said, therefore, that the respondent did not comply with the legal requirement that it re-assess the appellant’s needs before deciding to change the means by which those needs should be met, quite clearly it could – and doubtless would, if required – do so. In these circumstances, the appellant’s challenge would have to fail in the exercise of the court’s discretion

  1. I agree with all that Lord Brown has had to say on the other issues that arise on the appeal. There is nothing that I could usefully add to his admirable judgment on all of those matters.

LORD DYSON

  1. I agree that, for the reasons given by Lord Brown, this appeal should be dismissed. I wish to add some words of my own on the first issue. Mr Cragg makes two points in relation to the 2009 and 2010 Care Plan Reviews. The first is that they contained no reassessment of Ms McDonald’s needs which remained as “needs assistance to use the commode at night”. The second is that, if the Care Plan Reviews did reassess her care needs, the reassessment was unlawful because it was undertaken in breach of the Community Care Assessment Directions 2004 (“the 2004 Directions”) and the Fair Access to Care Services (“FACS”) guidance.
  1. Ms McDonald suffers from a small and neurogenic bladder so that she needs to urinate some three times during the night. The combination of this and the

fact that, as a result of a stroke, she has very limited mobility (and is therefore liable to fall) means that she cannot safely access a commode without assistance. The history of the respondent’s assessments of her care needs is set out in detail by Rix LJ (2010) 13 CCL Rep 664, paras 10 to 27. The following is a summary. A Needs Assessment with a start date of 22 January 2007 (signed off on 9 February 2007) stated that “frequent toileting still appears to be the major issue”. It also stated that Ms McDonald had refused to use incontinence pads and that she was requesting seven hours of care each night to assist her with using a commode. One of her needs was described in these terms: “3. Ms McDonald needs support with health needs including medication and continence issue. Substantial need.”: para 12.

  1. So at this early stage, her needs were described in general terms as being assistance with toileting. This general description was to be repeated later in the Care Plan Reviews for 2009 and 2010 which contained several references to Ms McDonald’s “toileting needs”. The 2007 Assessment showed that two very different ways of meeting these needs had been identified: the provision of a carer to assist her with the use of a commode and the provision of pads. Ms McDonald made it clear that she wanted the former and was implacably opposed to the latter. That has always been her position.
  1. A Care Plan dated 27 April 2007 recorded the fact that Ms McDonald did not use pads because she found them undignified and was in any event not incontinent and that she preferred to have assistance in using the toilet during the day and the commode at night. The plan stated that her needs were to be met inter alia by providing “assistance with toileting when it is required during the night. Ten hours over night care…”. The “summary of key problems/needs” stated: “Miss McDonald needs assistance to manage continence at night. Substantial Need”. This summary description was, however, later amended to read “Miss McDonald needs assistance at night to use the commode. Moderate Need”.
  1. The explanation for the change in the description of the need is given by Thomas Brown who is the Service Manager in the respondent’s Adult Social Care Department. He says at paragraph 8 of his first witness statement that the respondent made it clear to Ms McDonald from January 2007 that there would be no funding for night care. But it agreed to provide such funding on a short-term basis pending her application to the Independent Living Fund (“ILF”) for financial support on the basis that this would be refunded by the ILF to the respondent if her application was successful. Mr Brown says that this was a concession on the part of the respondent. It is not clear from the evidence whether Ms McDonald made this application and, if so, with what result.
  2. A further Needs Assessment was made in February 2008. There had been no change in Ms McDonald’s condition or in her attitude. She was still requesting assistance with using a commode at night and was still opposed to the use of pads. Her relevant need was expressed in these terms: “Miss McDonald needs assistance to use the commode at night Substantial Need”. In other words, the need was expressed in the same terms as in the Care Plan of 27 April 2007, although it was now described as a “substantial” rather than a “moderate” need.