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

Ms Elaine McDonald, the claimant in these proceedings for judicial review, is now 67 years old. She was at one time a principal ballerina with the Scottish Ballet. She lives in a flat in London SW5, in the Royal Borough of Kensington and Chelsea (the “Royal Borough”). In September 1999, Ms McDonald sadly suffered a stroke, which left her incapacitated, with reduced mobility and strength on the left side of her body. She wears a fitted splint on her left leg and foot and uses a wheelchair when outside her home. When walking she can experience a freezing effect in her left foot and has suffered a number of falls. She has had the assistance of her partner, Mr Donald McLeish, who has provided the majority of care for her in the past at any rate up to 2006, but he is not in such good health as he was and does not wish to be regarded as her carer. In April 2006 Ms McDonald suffered a severe fall at night and broke her hip in several places. She remained in hospital until August 2006. There was a second fall leading to a further hospitalisation soon after, and then a third fall and third hospitalisation. Although she receives a package of care from the Royal Borough in order to cover her assessed needs both during the day and at night, the dispute which has led to these proceedings concerns an important and distressing, but narrow, issue about night-time urination.

Ms McDonald suffers from a small and neurogenic bladder, the consequence of which is a need to urinate some three times during the night. She has up to now done so by accessing a commode with the help of a carer. That help is necessary to ensure Ms McDonald’s safety, so as to prevent falls. The dispute which has divided the parties is that Ms McDonald wishes to continue to use a commode for night-time urination, as she has done in the past, whereas the Royal Borough has sought to persuade her to use incontinence pads or special sheeting which would make it unnecessary to access a commode and would make a night-time carer redundant, either wholly or in large part. However, Ms McDonald has adamantly refused to consider the use of such devices, to which I shall refer as “pads”. She says, correctly, that she is not incontinent (although people in her situation are often referred to as “functionally incontinent”). She has a horror of the use of such pads, which she considers as an affront to her dignity. She has expressed herself in strong terms about her concerns.

In legal terms, and in a nutshell, the primary issue is whether the assessed need is a need for “assistance at night to use the commode”, which is how the matter is expressed in a Needs Assessment started on 2 July 2008 and signed off on 28 October 2008 (the “July 2008 needs assessment”), or is more properly expressed, by reference to the underlying rationale of Ms McDonald’s situation, as a need to urinate safely at night, which was the Royal Borough’s submission accepted by Frances Patterson QC, sitting as a deputy high court judge in the Administrative Court, in her judgment below.

The significance of that issue is this: if the assessed need is to use the commode, then the Royal Borough is at law bound by its statutory duty to meet that need irrespective of its cost and the impact such cost may have on its resources. Although the Royal Borough would in general be entitled to have regard to resources in determining how to meet needs, nevertheless having defined Ms McDonald’s need in such a specific way, it would be required to assist her to use her commode at night, and that would require a night-time carer to assist her to access her commode. If, however, the proper view of the assessed need is more generally in terms of safe urination at night, then the Royal Borough would be entitled to have regard to resources as to how that need might be met, and it would be entitled, subject to some further arguments raised on behalf of Ms McDonald concerning article 8 of the European Convention on Human Rights (the “ECHR”) and the Disability Discrimination Act 1995 (the “DDA 1995”), to decide, as it has, that a reasonable and adequate solution is the use of pads.

The decision of the Royal Borough which has been challenged in these proceedings is the decision made at a meeting in Ms McDonald’s home on 17 October 2008 and formally recorded in a letter from the Royal Borough to Ms McDonald dated 21 November 2008 to reduce the amount allocated to Ms McDonald’s weekly care from the former £703 to a new figure of £450 per week. The former figure paid for a night-time carer for 10 hours a night (between 10 pm and 8 am) seven nights a week (as well as for Ms McDonald’s day-time care, which is not in issue). The latter figure appears to have been assessed on the basis of £375 for day-time care, and £75 for the provision of pads at night (and possibly for some night-time assistance in the fitting of them, but I am unsure of that). It would seem however that the Royal Borough was willing for Ms McDonald to choose for herself exactly how she would wish the allocated total sum to be used on her day and night care. Thus it would be possible for a carer to be available to fit the pads at about 10 pm at night, if so desired.

The Royal Borough’s letter reads in part:

“As stated at the meeting, the rationale behind the planned reduction is that we consider the current provision to be in excess of that required to meet your eligible needs under the council’s Fair Access to Care Services criteria. The council has a duty to provide care, but we must do so in a way that shows regard for use of public resources.”

The letter went on to observe that the Royal Borough had hoped that Ms McDonald would respond to the request made at the 17 October meeting for her to identify how she would wish her care to be changed and the budgeted amount allocated. However, Ms McDonald had not responded, and therefore the letter stated that it was necessary for the new reduced care provision to start immediately.

That letter led to an almost immediate letter before action and to these proceedings, which were filed on 22 December 2008. In the event, the Royal Borough has not implemented its decision pending the resolution of these proceedings. A holding compromise has been reached whereby the Royal Council continues to fund a night-time carer for four nights per week, while on the other three nights, Ms McDonald’s partner, Mr McLeish, stays with Ms McDonald to provide her with support for her continued use of the commode for night-time urination.

Ms Patterson QC’s judgment refused the grant of permission to bring judicial review proceedings. The matter was dealt with before her as a “rolled up hearing”. As I have said, she regarded Ms McDonald’s assessed need as the underlying need for safe urination at night. On that basis, she had no need to consider the article 8 point further, for it was agreed before her that it was not a freestanding point, but depended on the primary ground being established, that the Royal Borough was in breach of its duties under relevant welfare legislation (the “primary ground”). At that time there was no third point raised under the DDA 1995.

Upon Ms McDonald’s application for permission to appeal, Laws LJ granted permission and directed that Ms McDonald’s claim for judicial review should therefore be heard by this court. In the circumstances this is not formally an appeal, but a claim for judicial review for which permission has been granted.

The above introduction states the essential issues and how they arise, but it is necessary to provide further information about the factual background.

Ms McDonald complains that, when she left hospital in August 2006, adequate night-time care was not put into place and that, as a result, she fell again and was re-admitted. By that time the strain of providing care for her was proving too much for Mr McLeish, who was himself admitted to hospital. He was discharged in October 2006, since when he has been rehoused and lives apart from Ms McDonald, although as I have said he has been spending three nights a week at her home pending the resolution of these proceedings.

During Ms McDonald’s third hospitalisation, the Royal Borough drew up a Needs Assessment with a start date of 22 January 2007 and a signing off date of 9 February 2007. It records that her consultant neurologist thought that a night-time carer would be helpful “certainly in the initial phase following her discharge from hospital”. The Assessment contains a heading “History of Continence Management”, which states that “frequent toileting still appears to be the major issue…However Ms McDonald and her partner (Donald) refused to use incontinence pads…Management of Ms McDonald’s incontinence has been discussed with both Ms McDonald and Donald (partner) on many occasions. However, both are of the view that use of incontinence pads is an old fashioned way to manage incontinence and undignified…It has been discussed with Elaine that incontinence sheets may be more acceptable to her as they are less intrusive and easy to manage. They may be a possible solution as she is voiding only small amounts of urine at night.” Ms McDonald was requesting 7 hours of night care each night to assist her with using the commode at night. The assessment ended with a summary which expressed her relevant need as “3. Ms McDonald needs support with health needs including medication and continence issue Substantial need”.

After Ms McDonald’s third hospitalisation, an application was made as part of her hospital discharge planning process to the Independent Living Fund (“ILF”) to obtain full day and night time support for her. On her discharge on 12 March 2007 the Royal Borough provided her with an interim care package which included 70 hours of night-time care per week (10 hours per night). That package was to be a short-term provision whilst the ILF application was resolved. As it emerged, however, the ILF application failed, inter alia because Ms McDonald, on turning 65, ceased to be eligible for funding from it.

An original Care Plan dated 27 April 2007 recorded both Ms McDonald’s assessed needs and the care with which she was being provided to meet those needs (starting with her discharge from hospital). Need 6 was defined generally as “Support Maxine [a carer] to maintain her caring role for Elaine”. Against “How we plan to meet this need” was written inter alia – “This includes assistance with toileting, when its required during the night. 10 hours over night care…”. A FACE Overview Assessment followed on 8 January 2008 at Ms McDonald’s home, which led to the completion of a lengthy and detailed form given that nominal date. Extracts from it read as follows:

“Miss McDonald does not use incontinence pads as she tells me she finds it very undignified. Miss McDonald states she is not incontinent and needs supervision to mobilise to the toilet and to the commode. Miss McDonald prefers to have assistance to use the toilet during the day and the commode at night…

Should Ms McDonald pursue the viability of medication to assist her with bladder frequency and also have a pad on her bed it would help her to manage her continence and reduce the risks…

Summary of key problems/needs…

At that stage, therefore, the assessed need was not in terms of “assistance at night to use commode” but more generally of “assistance to manage continence at night”.

Subsequently, however, the FACE Overview Assessment was amended at some time to read:

“7.

Miss McDonald needs assistance at night to use the commode Moderate Need.”

This may have reflected the next needs assessment.

Thus a further Needs Assessment was started on 19 February 2008 and signed off on 29 February 2008. It includes the following:

“Ms McDonald wanted to emphasis[e] that she requires assistance with all transfers and when she mobilises. Ms McDonald requested night care in order [for] someone to assist her using commode during the night. This is because Ms McDonald does not wish to use incontinent pads and sheets…

Summary of Needs Assessment…

7.

Miss McDonald needs assistance to use the commode at night Substantial Need”

A still further Needs Assessment, and the one current at the outset of these proceedings, was started on 2 July 2008 and signed off on 28 October 2008 (already referred to as the July 2008 needs assessment). It also concluded with “7. Miss McDonald needs assistance to use the commode at night Substantial Need”. This is the assessed need which is the linchpin of Ms McDonald’s case and is in more specific terms than the previous more general formulations of Ms McDonald’s night-time toileting needs.

It is to be noted that the 17 October meeting, at which Ms McDonald was told that her “care would need to be changed to reflect your needs” and that as a result the allocated funding would be reduced to £450 per week, took place between the start and signing off dates of the July 2008 needs assessment. Even though that meeting and the Royal Borough’s subsequent letter dated 21 November 2008, cited above, were premised on the Royal Borough’s evident view that Ms McDonald’s night-time toileting needs were such as could be properly managed by the use of pads, the July 2008 needs assessment was signed off on 28 October in the terms in which it had been written.

In the light of the Royal Borough’s submission to the judge, which she accepted, that the true underlying rationale of the assessed need was safety in night-time toileting management, we asked Mr Kelvin Rutledge, who appeared for the Royal Borough, whether it was his submission to us that the July 2008 needs assessment had been subject to an error of expression. However, he declined to say that it was. He accepted that its wording was deliberate, and could be contrasted with earlier (and, as will be seen, later) wording in more general terms.

Consistently with Mr Rutledge’s position in that respect, we find that a Care Plan dated 17 November 2008, ie after the 17 October meeting, continues to record Ms McDonald’s need as “assistance to use the commode at night” and, consistently with that, although inconsistently with the decision in the course of being formalised, states the total weekly cost of the care package to be provided at £703.

The judgment below was given on 5 March 2009. At that time Ms Patterson QC’s judgment was in favour of the Royal Borough in accepting that the true assessed need of Ms McDonald was her safety (in urinating at night). The judge, founding herself on R v. Kirklees Metropolitan Borough Council ex parte Daykin [1998] 1 CCLR 512 (“Kirklees”), put it in this way:

“Likewise, in this case, it is right to examine the underlying rationale for what is described as the assessed need. Here it is the consequence of the claimant’s neurogenic bladder which means that she experiences frequency of urine. Because of that, she needs to get up and use the commode. Because of her physical impairment and frailty, she cannot do so without assistance, or she is exposed to a real risk of injury, as has happened in the history that I have set out, with serial hospital admissions as a result of her falls. The core need, then, is the safety of the claimant, in my judgment.”

On 4 November 2009, pending these appeal proceedings, the Royal Borough carried out a “Care Plan Review” at Ms McDonald’s home. This is a lengthy and detailed document. Passages relevant to the current issue are set out below:

“a)

The service user’s view…

When it came to discussing Ms McDonald’s toileting needs Ms McDonald found discussing something which she deemed so personal and private upsetting. Ms McDonald particularly opposed the suggestion that her toileting need could be met by the use of incontinence pads…

b)

The provider’s view…

Social Services have assessed and regularly reviewed Ms McDonald’s care needs and concluded that the current care arrangements exceed those reasonably necessary to meet Ms McDonald’s care needs. Ms McDonald considers that the need for support at night is essential because she cannot transfer unassisted to the commode, as a result of her disability. Social Services fully acknowledges the risk but they remain of the view that Ms McDonald’s need should be managed through the use of incontinence pads, thus avoiding all together the risk of injury and also the need to have someone in her flat throughout the night, thereby providing her with greater privacy. This has been suggested by a number of NHS professionals over recent years.

A Judicial Review is currently in progress. A decision has been taken, for pragmatic reasons, that whilst this remains unconcluded, there will be a halt in the phased reduction of a night-time carer service for Ms McDonald. However, in the longer term, depending on the outcome of the case, it is intended to fully implement that reduction…

Toileting/Substantial Risk: Ms McDonald has been diagnosed with having a Neurogenic bladder, which makes Ms McDonald want to go to the toilet more frequently. Ms McDonald needs assistance to safely access the toilet during the day and, if she uses it at night. Ms McDonald states that she is not incontinent of urine and as already mentioned she is opposed to wearing an incontinence pad to meet her toileting needs. Ms McDonald estimates that she needs to use the commode two to three times during the course of the night. Ms McDonald would not be able to carry out these transfers safely, due to the issues identified in the mobility section…

Conclusion: Ms McDonald continues to live safely at home. There have been no hospital admissions since she was discharged in early 2007…[I]t remains Social Service’s view that the use of incontinence pads is a practical and appropriate solution to ms McDonald’s night-time toileting needs. There does not see[m] to be any reason why this planned reduction to provide care should not go ahead…

Review Decision No change community based services

Next Review Date 04/05/2010”

Pursuant to that indication to have a further Care Plan Review in spring 2010, a new review was conducted following a visit to Ms McDonald’s home on 15 April 2010. This is a further lengthy and detailed document, which to some extent covers the same ground as the review in November 2009 and to some extent discusses further matters. Thus Ms McDonald now raised the issue of possible pressure sores owing to her inability to change her position in bed at night, and said that that was an (additional) reason why night-time care was essential. She continued to remain upset and angry at the suggestion of her use of incontinence aids. She was unwilling to consider a move to sheltered housing. She felt discriminated against. Under the heading “Toileting/Substantial Risk”, the substance of the remarks were as stated in the November 2009 review. It was observed that “No issues were raised about the need to open her bowels at night”, and that “Ms McDonald did not want to discuss the option of using incontinence pads or Kylie sheets as a way of meeting her toileting needs”. Mr McLeish’s role was discussed, but he made it plain that he did not want to be regarded as Ms McDonald’s carer. As for pressure sores, Ms McDonald’s concern was noted, but it was considered that there was minimal risk. In the Conclusion this appears:

“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 affront to her dignity. Other service users 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 the 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. I do not consider that a night time carer is required in order to assist with turning in bed, because turning is not necessary and any risk of pressure sores from not turning can be addressed by provision of a pressure relieving mattress if appropriate.

In light of her entrenched position on this, and despite the council’s view that pads and/or sheets are the best way to ensure Ms McDonald’s safety, consideration has been given to Extra Care Sheltered Housing as a means by which Ms McDonald could continue to receive support throughout the day and night. This would be consistent with her wish to receive personal care and also remain living independently in the community. It is not the recommended option because being assisted to access the toilet at night carries a risk of falls, but has been explored because of the impasse as regards the use of pads. Such accommodation will make support available 24 hours a day and reduce any longer term need to provide residential care to Ms McDonald should her needs increase in future. Ms McDonald refused this option when it was discussed with her.”

In her first witness statement, Ms McDonald stressed the anxiety caused both to her and to her partner by the Royal Borough’s decision to reduce her care package. She disliked the idea of pads as “I will lose all sense of dignity”. She could not understand why the ILF application did not succeed. She felt that she and her partner were being punished by social services. In her second witness statement, she indicated how much she disliked being regarded as though she were incontinent, and also that a night time carer was needed not just to access the commode but to assist her generally. In her third witness statement, prepared for this hearing, she went into further detail of the distress caused to her (and the difficulties caused to her partner) by the Royal Borough’s decision and the prospect of being forced into incontinence by the use of pads.

In evidence filed on behalf of the Royal Borough by Mr Thomas Brown, a service manager in the Royal Borough’s adult social care department, he described in his first statement the history set out above leading to these proceedings. He explained that the application for funding to the ILF was in addition to the needs which the Royal Borough was at any time prepared to fund. It was contemplated that the Royal Borough would be reimbursed once the ILF application had been approved. He said that a package for 90 hours care per week, sought by Ms McDonald, was in his experience unheard of in 15 years of adult social work. Incontinence pads are frequently used by individuals who are not incontinent but need them to manage their continence, since they obviate the need to get up in the night, and thus provide greater independence. Most people in his experience were prepared to accept them. In his second witness statement, Mr Brown gave details of the financial implications of the dispute. The current weekly cost to the Royal Borough of Ms McDonald’s day time care and her night time care of 10 hours four nights per week is nearly £623. The cost of a night-time carer seven nights a week would be alone some £428, or £22,270 per year. This would have to be paid for out of the adult social care budget from which all other community care services for adults are funded in the Royal Borough. He accepted that cost was a major factor in the Royal Borough’s approach to the issue in circumstances where it had a finite budget to meet substantial demands, but it was not the sole consideration. The use of pads would ensure Ms McDonald’s safety and provide her with greater privacy and independence in her own home. The use of pads is both widespread and accepted practice in the provision of social services for patients who are not clinically incontinent. The Royal Borough “continues to believe, therefore, that this is the best solution to the problem in all the circumstances”.

In his third witness statement, produced for this hearing, Mr Brown referred to the care plan reviews discussed above, and gave evidence in support of their conclusions. He said that he remained satisfied that the use of pads was appropriate notwithstanding Ms McDonald’s objections. It was the Royal Borough’s view that such products provided greater privacy and dignity than the presence of a carer assisting with personal and intimate functions at night, it minimised the risk of falls and provided the safest environment. He also explained the flexibility with which the £450 weekly funding could be used, according to Ms McDonald’s preferences, to pay for a late evening visit at a preferred bedtime for the purpose of fitting the pads, and even a subsequent visit if necessary. Finally, he said that from May 2010 the Royal Borough would be required by increasing pressure on resources and diminished revenues to introduce a contributions policy.

The statutory framework is to be found in provisions of the National Health Service and Community Care Act 1990 (“NHSCCA 1990”), the Chronically Sick and Disabled Persons Act 1970 (“CSDPA 1970”), and the National Assistance Act 1948 (“NAA 1948”).

Section 47 of NHSCCA 1990 imposes a statutory duty on local authorities to assess those who appear to be in need of community care services. It requires “an assessment of his needs” and then a decision “having regards to the results of that assessment…whether his needs call for the provision by them of any such services”. Subject to any directions given by the Secretary of State as to the manner in which an assessment is to be carried out or the form it is to take, it shall be carried out and take such form as the local authority consider appropriate.

Section 29 of NAA 1948 places a duty on local authorities to “make arrangements” for promoting the welfare of (among others) persons who are substantially and permanently handicapped by illness or injury.

Section 2(1)(a) of CSDPA 1970 extends the provision of welfare services required by section 29 of the 1948 Act to “the provision of practical assistance for that person in his home”, where that is necessary to meet the needs of that person.

Thus these Acts require a local authority to assess needs, then to decide by reference to such an assessment whether the provision of relevant services are called for, and then to make arrangements for the provision of the services which have been decided upon as being called for. It is unnecessary to set out these well-known provisions verbatim, as there is no issue between the parties as to their content or effect.

Section 7(1) of the Local Authority Social Services Act 1970 (“LASSA 1970) authorises the Department of Health to issue guidance to local authorities which the authorities are bound to follow unless they can provide clear and adequate reasons for not doing so (R v. Islington London Borough Council ex parte Rixon (1998) 1 CCLR 119). The Department has issued such guidance on “Fair Access to Care Services” (“FACS”, see further below).

Relevant jurisprudence has determined the extent to which a local authority is entitled in the assessment of needs and the provision of services to meet such needs to have regard to resources. It is entitled to have regard to them in assessing needs (R v. Gloucestershire County Councilex parte Barry [1997] AC 584 (Barry)) and in choosing between different means of meeting the assessed need (Kirklees). Subject to that, however, a need, once assessed, has to be met by the provision of services. None of that is in dispute either.

However, the teaching of Kirklees is in dispute, for the judge relied on that decision by Collins J to determine that it was permissible to gloss the assessed need for “assistance to use the commode at night” as a core need for safety and then to say that the latter need could be met by the provision of pads rather than by a night-time carer. In Kirklees the applicants were disabled and unable to manage stairs, but lived in a first floor flat that could only be reached by stairs. A stair lift or shaft was recommended by a therapist, but that proved difficult and/or expensive. A different therapist recommended a ground floor wheel-chair adapted accommodation. The cost of the former recommendation would have been about £15,000 and the cost of the latter alternative would have been about £3,000. In the event the local authority decided to re-house the applicants and premises were identified. However, the applicants did not wish to be moved. Collins J found that the local authority had never in fact assessed the applicants’ needs. He therefore had to do the best he could to identify what those needs were. Collins J said (at 525/6):

“The problem in this case, as it seems to me, is that the local authority never carried out their duty under section 47 and section 2 to assess the needs and to indicate what were the services that needed to be provided to meet those needs…[I]t seems to me to be perfectly clear that the needs that have led to the question about the provision of a stair lift are the needs for the applicants to be able to get in and out of the premises. Those are the relevant needs. They can be met, as it seems to me, either by removing them to other premises where access is possible for them, which in the context of this case, would be ground floor premises, or adapting the existing premises to provide a stair lift.

It is, in my judgment, impossible to regard the provision of a stair lift at home as ‘the need’. In those circumstances, it is open to the local authority to reconsider the way in which those needs can be met provided that there has been no positive decision to meet them in a particular fashion. I say ‘provided there has been no positive decision’, but of course such a decision could itself be changed upon reconsideration. One must always bear in mind that it is the duty of the authority to meet the needs…Once they have identified after discussion the manner in which those needs are to be met, then the Act requires that they get on with it and meet those needs. But it seems to me that they are entitled to flexibility as to how those needs are to be met.”

The judge considered that this precedent entitled her to determine the assessed need for herself. However, that was a case where the authority had not got as far as an assessment or a decision based on such an assessment. In the present case, however, the Royal Borough has assessed Ms McDonald’s need and the question is whether it can be glossed and reinterpreted by the judge. With respect to the judge, it does not seem to me that Kirklees is of much assistance here. The assessment of need is primarily a matter for the local authority and not for the court.

Thus in the present case Mr Stephen Cragg on behalf Ms McDonald submits that R v. Gloucestshire County Council ex parte Mahfood, Barry, Grinham and Dartnell [1995] 1 CCLR 1997 (“Mahfood”) is more directly relevant. There the applicants had had their needs assessed by the authority, which sought to reduce the care provided to meet those needs simply on the basis that it had had its own funding cut unexpectedly, and without any reassessment of needs. McCowan LJ said (at 16I/J):

“It would certainly have been open to the Gloucestershire County Council to re-assess the individual applicants as individuals, judging their current needs and taking into account all relevant factors including the resources now available and the competing needs of other disabled persons. What they were not entitled to do, but what in my judgment they in fact did, was not to re-assess at all but simply to cut the services they were providing because their resources in turn had been cut. This amounted to treating the cut in resources as the sole factor to be taken into account and that was, in my judgment, unlawful.”

Mr Rutledge submits on behalf of the Royal Borough, nevertheless, that it is still open to the court to interpret the July 2008 needs assessment to arrive at the underlying rationale of Ms McDonald’s night-time toileting needs, rather than to read that needs assessment in too literal a manner. Alternatively, Mr Rutledge submits that the care plan reviews of November 2009 and April 2010 pending this hearing in the court of appeal have recorded the Royal Borough’s reassessment of Ms McDonald’s needs so as to formalise them anew in the more general terms accepted by the judge below.

On behalf of Ms McDonald, on the other hand, Mr Cragg submits that the specific terms of the July 2008 needs assessment left no room for the judge’s reinterpretation of the assessed need in question, and that there had been no new “Needs Assessment” or reassessment since that date, only “Care Plan Reviews”. The Care Plan was concerned with how assessed needs were to be implemented, not with the assessment of needs, which was the subject matter of a Needs Assessment; and Care Plan Reviews were nothing more than the review of an earlier Care Plan.

These competing submissions made it necessary to consider any relevant directions given by the Department of Health pursuant to section 47(4) of NHSCCA 1990 and/or any relevant guidance given in FACS pursuant to section 7(1) of LASSA 1970.

Pursuant to section 47(4) of NHSCCA 1990, the Community Care Assessment Directions 2004 provide, as to the manner and form of assessment of needs for community care services:

“2.

–(1) In assessing the needs of a person under section 47(1) of [NHSCCA 1990] a local authority must comply with paragraphs (2) and (4).

(2)

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

(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.

(4)

The local authority must provide information to the person and, where they think it appropriate, any carers of that person, about the amount of the payment (if any) which the person will be liable to make in respect of community care services which they are considering providing to him.”

Thus, subject to these directions, about which no issue arises, a needs assessment “shall be carried out in such manner and take such form as the local authority consider appropriate” (section 47(4)). It is clear from the facts stated above that the Royal Borough has taken great pains to consult both Ms McDonald and Mr McLeish about Ms McDonald’s needs and their assessment and solution, and to seek agreement with Ms McDonald about such matters.

FACS gives detailed guidance about the manner in which needs should be assessed and implemented. We have been referred to passages in it, but it has not been submitted that there has been any breach of specific guidance. In general, it is stressed that assessment should be rounded and person-centred, that it should be carried out transparently so that individuals should gain a better understanding of their situation, should identify the options available to them for managing their own lives, and should understand the basis on which decisions are reached. Autonomy, and health and safety, should be considered and evaluated. It is suggested that needs should first be assessed (and their eligibility considered, but in the present case no issue of eligibility arises), and that a care plan should then be formalised, which should be a written record of (inter alia) eligible needs and service provision. The guidance therefore looks to a care plan as being the ultimate written record of both assessed needs and the care provided to meet them. The creation by the Royal Borough of separate needs assessment and care plan documents is, if anything, an elaboration of such guidance.

Under a separate heading beginning at para 57, FACS goes on to consider the matter of “Reviews”. Reviews should “re-assess the needs and circumstances of individual service users” and “confirm or amend the current care plan”. There should be an initial review after three months of help first being provided and thereafter at least annually or more often. Councils should record the results of reviews and update the care plan.

Mr Cragg submits that the assessed need is “assistance to use the commode at night” and that that need has never been reassessed in different terms. He submits that the Care Plan Reviews which have followed the judgment below have not reassessed Ms McDonald’s relevant need in any different terms, and do not even purport to do so. He points to language in them such as “Social Services have assessed and regularly reviewed Ms McDonald’s care needs…” as indicating the entirely historical aspect of such assessment. He cites the final “Review Decision”, namely “No change community based services”, as reaffirming the previous assessment.

Mr Rutledge submits that the judge was entitled and right to look to the underlying substance of the assessed need, alternatively that the need has been reassessed on that basis in the recent Care Plan Reviews.

Ultimately, after a careful consideration of the factual and legal backgrounds, this remains a narrow issue, or rather, in the light of the new Reviews, pair of issues.

Despite my view that the judge found more help in Kirklees than it was able to afford, I have sympathy with her view below that the true assessed need was the underlying one of safety in managing Ms McDonald’s night-time toileting. That was because the precise formulation in which the relevant need was expressed went through different versions over the period from early 2007 into 2008 without any real change in the underlying conditions or considerations. Particularly in the light of the meeting of 17 October 2008 and the imminent formalisation of the provisional decision then made, all of which preceded the formal signing off of the July 2008 needs assessment, and which was premised on the basis that Ms McDonald’s real need was the management of her night-time urination, preferably by the use of pads, there is force in the Royal Borough’s submission that an adherence to the precise language of that July 2008 assessment is an exercise in excessive literalism.

On the other hand, Mr Rutledge accepts that that language of the July 2008 needs assessment was deliberately chosen, and was not the result of any error. On that basis, it contrasts strongly in its specific form with the more general formulation of Ms McDonald’s need to be found in earlier (and later) documents. If an assessed need is precisely formulated in terms of a “TV set”, it seems to me that it would not be in order for that need to be met with the supply of a radio on the basis that the real need was communication and/or entertainment. It is for the authority, carrying out the detailed guidance contained in FACS, rather than the court, to formulate the assessed need.

Therefore, as of the time when these proceedings commenced, the Royal Borough was in breach of its statutory duty in as much as it indicated that it would not make arrangements to provide the means to meet the assessed need of assistance to access Ms McDonald’s commode at night.

Since then, it has not put its decision into operation, but has come to an arrangement whereby it meets the cost of a night-time carer four nights a week. Furthermore, it has reviewed the situation in the Care Plan Reviews of November 2009 and April 2010.

Those reviews have to be read against the complex background that (a) the July 2008 needs assessment spoke of assistance to access the commode; (b) the Royal Borough argued before the judge that that needs assessment should be understood to be referring more generally to a need to manage night-time urination in safety; (c) the judge agreed with that submission; (d) the Royal Borough had taken the decision that Ms McDonald’s needs could be properly met by the provision of pads.

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”.

The reason why the reviews conclude with a “Review Decision” of “No change”, is that the Royal Borough was maintaining its arrangements pending the conclusion of the appeal proceedings, and in any event considered that it had always assessed Ms McDonald’s needs in this way, as the judge had accepted.

In these circumstances I reject Mr Cragg’s submission that there has not been a reassessment of Ms McDonald’s needs, or that such a reassessment has not founded itself on the analysis that Ms McDonald would be safer, more independent, and achieve greater privacy and ultimately dignity, if she consented to the use of pads. Such an assessment would be consistent moreover with the attitude adopted by the Royal Borough since before this litigation commenced, and with the judge’s judgment.

In my judgment, my analysis is consistent with the views of Collins J in Kirklees and McCowan LJ in Mahfood.

On this basis, Mr Cragg argued only lightly, if at all, that there was a breach of the Royal Borough’s welfare duties susceptible to judicial review. The Royal Borough’s ultimate decision to meet Ms McDonald’s reassessed night-time toileting need by the use of pads was a reasonable decision. The Royal Borough has acted cautiously and generously in seeking to accommodate Ms McDonald’s wishes. However, it is responsible also for acting on behalf of the interests of all the clients whose welfare it supports with the use of limited resources. The evidence is that the use of pads in circumstances such as those which afflict Ms McDonald is a widespread, satisfactory and accepted practice. Although it does not suit Ms McDonald’s preferences, and it cannot make for perfection in a difficult situation, it provides safety and a large degree of independence and privacy.

Therefore, the Royal Borough has been in breach of its duty between 21 November 2008 (the date of its disputed decision letter) and 4 November 2009, the date of its first Care Plan Review, but not thereafter. In that period, it has mitigated its breach by the arrangement it kept in place with the assistance of Mr McLeish.

Before the judge Mr Cragg made it clear that article 8 was not a freestanding ground of attack on the Royal Borough’s decision. Its function was to provide a remedy in the form of damages for breach of article 8, in circumstances where there had been a failure by the Royal Borough to comply with its welfare duties under the primary ground.

In his skeleton argument before us, Mr Cragg has again made it clear that he does not submit that article 8 provides a freestanding ground of challenge. He has, however, relied on article 8 as informing the question of breach under his primary ground, and also as providing a remedy in damages where a breach under his primary ground has been established.

Article 8 provides:

“1.

Everyone has a right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

It is accepted by Mr Rutledge on behalf of the Royal Borough that article 8 is “engaged” in the sense in which Lord Hope of Craighead addressed that expression in Regina (L) v. Commissioner of Police of the Metropolis [2009] UKSC 3, [2010] 1 AC 410 at [23], ie as indicating that “the issue that has been raised is within the scope of the article”. However, he disputes that there has been such an interference with the article 8(1) rights as to raise an issue for justification, and in any event he disputes that any interference is not justified under article 8(2). Therefore, in any event, he submits, there is no breach.

On behalf of Ms McDonald, Mr Cragg submits that the essence of article 8 is the protection of the dignity of the individual in his or her private life. This has now been reinforced by the UN Convention on the Rights of Persons with Disabilities, ratified by the United Kingdom on 8 June 2009, article 3 of which states as its first principle is “Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons”. He submits that respect for the dignity of the individual has been recognised in Strasbourg jurisprudence, such as in Pretty v. UK (2002) 35 EHRR 1 (at para 61: “It covers the physical and psychological integrity of a person”) and may operate where even treatment which does not reach the severity of a breach of article 3 nevertheless has sufficiently adverse effects on physical and moral integrity (Bensaid v. United Kingdom (2001) 33 EHRR 205, at para 46). Especially where there has been a withdrawal of prior care, there may be a breach in the present circumstances, and there was here, especially where Ms McDonald was not incontinent, and where the enforced use of pads would be an unacceptable affront to her independence and dignity, and/or an intolerable imposition on her partner. He relied in particular on R on the application of Bernard v. Enfield London Borough Council [2002] EWHC 2282 (Admin), (2002) 5 CCLR 577, where Sullivan J held that the defendant’s failure to take any steps to resolve the applicant family’s accommodation situation, leading to the wife, who was paralysed and wheel-chair bound, being confined to a living room where she was forced to defecate and urinate on the floor, was in breach of article 8 and led to an award of a total of £10,000 to the couple.

In the present case, Ms McDonald begins with a finding of breach under the primary ground, during a little under a year, albeit the breach has been mitigated by the arrangements made to support Ms McDonald in the interim. For the period of the Royal Borough’s breach of domestic duty, it cannot claim justification if it has interfered sufficiently to cause a prima facie breach of article 8, because it cannot bring itself within the terms of article 8(2)’s “in accordance with the law”. Otherwise the grounds for justification would be formidable: see Pretty at paras 67/78, and Sentges v. The Netherlands (Application no 27677/02) where the issue was whether the applicant sufferer from muscular dystrophy could complain under article 8 that he had not been supplied with a robotic arm. In the latter case, the European Court of Human Rights said (at 6):

“The Court has also held that Article 8 cannot be considered applicable each time an individual’s everyday life is disrupted, but only in exceptional cases where the State’s failure to adopt measures interferes with the individual’s right to personal development and his or her right to establish and maintain relations with other human beings and the outside world. It is incumbent on the individual concerned to demonstrate the existence of a special link between the situation complained of and the particular needs of his or her private life (see Zehnalovàand Zehnal v. The Czech Republic (dec.), no. 38621/97, ECHR 2002-V).

Even assuming that in the present case such a special link indeed exists – as was accepted by the Central Appeals Tribunal – , regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole and to the wide margin of appreciation enjoyed by States in this respect in determining the steps to be taken to ensure compliance with the Convention (see Zehnalovà and Zehnal, cited above).

This margin of appreciation is even wider when, as in the present case, the issues involve an assessment of the priorities in the context of the allocation of limited State resources (see, mutatis mutandis, Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, p. 3159, § 116, O’Reilly and Others v. Ireland (dec.), no. 54725/00, 28 February 2002, unreported). In view of the familiarity with the demands made on the health care system as well as with the funds available to meet those demands, the national authorities are in a better position to carry out this assessment than an international court.”

See also Nitecki v. Poland (Application no 65653/01), Pentiacova v. Moldova (Application no 14462/03) and Mólka v. Poland (Application no 56550/00).

So the question is whether the Royal Borough, for the period of under a year when it was in breach of its domestic duty, had also interfered sufficiently seriously with Ms McDonald’s article 8 rights to amount to a breach of that article. However, it is not every breach of duty under domestic law which amounts to a breach of article 8, as Sullivan J himself recognised in Bernard (at para 32), and Ms McDonald has been protected by the interim arrangements made by the Royal Borough and the co-operation of Mr McLeish (who does not claim as a victim himself). In this respect the leading case in domestic jurisprudence is Anufrijeva v. Southwark London Borough Council [2003] EWCA Civ 1406, [2004] QB 1124. Anufrijeva concerned three separate claimant asylum seekers, each of whom relied on article 8. One complained that a local authority had failed to discharge its domestic duty to provide accommodation to meet the special needs of a member of his family. The other two complained of maladministration and delay in the handling of their asylum applications. All three lost their claim. Of particular relevance to our case are the following passages from the judgment of the court given by Lord Woolf CJ:

“Conclusions

43 …Our conclusion is that Sullivan J was correct [in Bernard] to accept that article 8 is capable of imposing on a state a positive obligation to provide support. We find it hard to conceive, however, 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 be more readily 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 requires family life to continue. Thus, in R (J) v. Enfield London Borough Council [2002] EWHC 735 (Admin), where the claimant was homeless amd faced separation from her child, it was common ground that, if this occurred, article 8(1) would be infringed. Family life was seriously inhibited by the hideous conditions prevailing in the claimants’ home in Bernard and we consider that it was open to Sullivan J to find that article 8 was infringed on the facts of that case…

48 …in considering whether the threshold of article 8 has been reached it is necessary to have regard both to the extent of the culpability of the failure to act and to the severity of the consequence. Clearly, where one is considering whether there has been a lack of respect for article 8 rights, the more glaring the deficiency in the public authority, the easier it will be to establish the necessary want of respect. Isolated acts of even significant carelessness are unlikely to suffice.”

In the present case, I consider that the conditions for finding a breach of article 8 are not established. I have the greatest sympathy for the misfortunes of Ms McDonald and, I would like to believe, a real understanding for her dislike of what the Royal Borough has proposed. However, even though the Royal Borough had in my judgment failed in its duty in overlooking that at the time of its November 2008 decision Ms McDonald’s defined need was still that of assistance to access the commode at night, that error was not born of any lack of respect for her dignity, but of a concern, even if at that time wrongly executed, to perform the difficult task of balancing its desire to assist Ms McDonald with its responsibilities to all its clients within the limited resources available to it in its budget. One only has to read the range of documents in the files in court concerned with the Royal Borough’s dealing with Ms McDonald and her problems to see that there was at all times a genuine attempt to assist her and, even if that was not apparent to Ms McDonald, to do so in a way which respected as far as possible her personal feelings and desires, and at the same time took into objective account her safety, independence, autonomy and personal integrity and the Royal Borough’s responsibilities for all its clients.

In his supplementary submissions delivered after the hearing was over, Mr Cragg submitted that a finding of breach of article 8 could lead to a modest remedy in damages in the order of £2,000-£4,000. I regret to say that I would reject the claim for relief by reference to an alleged breach of article 8.

Mr Cragg’s submissions with respect to the DDA 1995 ultimately came to be refined so as to rest solely on a combination of sections 21B(1), 21D(2) and section 21E(2) of the Act, which provided as follows:

“21BDiscrimination by public authorities

(1)

It is unlawful for a public authority to discriminate against a disabled person in carrying out its public functions…

21D Meaning of “discrimination in” section 21B

…

(2)

For the purposes of section 21B(1), a public authority also discriminates against a disabled person if –

(a)

it fails to comply with a duty imposed on it by section 21E in circumstances in which the effect of the failure is to make it –

(i)

impossible or unreasonably difficult for the disabled person to receive any benefit that is or may be conferred, or

(ii)

unreasonably adverse for the disabled person to experience being subjected to a detriment by which a person is or may be subjected,

by the carrying-out of a function by the authority; and

(b)

it cannot show that its failure to comply with that duty is justified under subsection (3), (5) or (7)(c)…

21E Duties for purposes of section 21D(2) to make adjustments

(1)

Subsection (2) applies where a public authority has 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.

(2)

It is the duty of the authority to take such steps as it is reasonable for the authority to take in order to change that practice, policy or procedure so that it no longer has that effect.”

Thus ultimately Mr Cragg relies on section 21E(2) to submit that the Royal Borough had breached its duty thereunder and that no justification applied. However, it is not clear to me what the function of this submission was within the structure of Mr Cragg’s overall argument, save possibly to require the Royal Borough to change a relevant “practice, policy or procedure”.

It appears that it is argued that the driving force of the Royal Borough’s decision was a practice or policy whereby, as Mr Brown had said in his second witness statement, cost was a major factor. If, therefore, the Royal Borough were to be required “to take such steps as it is reasonable for the authority to take in order to change” that practice or policy, then the result would be that it would necessarily have to conclude that Ms McDonald should be provided with the night-time care which she has requested. As Mr Cragg’s skeleton argument submits: the Royal Borough is under a duty to take reasonable steps to change its practice or policy so as “no longer to deprive Ms McDonald of the service she needs to protect her dignity”. He recognises that the Royal Borough may wish to argue that the cost-effective meeting of needs, or the equitable allocation of limited care resources, is a legitimate aim, but submits that the saving of the £60 per night required to preserve Ms McDonald’s core right of dignity is not proportionate.

We were referred to R (on the application of Lunt) v. Liverpool City Council [2009] EWHC 2356 (Admin) where Blake J at [53] adopted a list of six questions for the purpose of analysing a complaint made under section 21E. The last of the six questions is:

“If so, can the Council show that its failure to comply is justified in that either –

(a)

it reasonably holds an opinion that the non-compliance is necessary in order not to endanger the health or safety of any other person; or

(b)

its failure is justified as a proportionate means of achieving another legitimate aim?”

We were also referred to R (on the application of AM) v. Birmingham City Council [2009] EWHC 688 (Admin), [2009] 12 CCLR 407, where Cranston J considered complaints under section 21E and/or section 49A of the DDA 1995 (the latter relating to the general disability equality duty to have “due regard” for the matters listed in its subsection (1)) brought by an applicant who suffered from muscular dystrophy and needed support to enable him to attend university. There was an issue relating to the applicant’s toileting needs. The university considered that a specially adapted toilet facility with necessary equipment to hoist the applicant from his wheel-chair was required on the university premises. That would cost £4,000. However, an occupational therapist reported that the applicant could make use of his toilet facilities at his home, where carers would visit him, and that there was no need to duplicate the facilities at the university. The local authority agreed with the therapist’s view of the matter, and this decision was challenged. Cranston J held that there had been no failure to have “due regard”. There is no issue in this case by reference to section 49A. As for the section 21E complaint, Cranston J said this:

“45.

Although Mr Armstrong invoked section 21B of the DDA, his submissions focused on the general duty under 49A. That is understandable, because in my view, putting to one side whether the Administrative Court is an appropriate forum for a section 21B claim, there are insuperable difficulties in the claimant establishing that there has been discrimination as defined in section 21D. In as much as the claimant relies on any alleged failure of duty to make adjustments, he has not proved that the failure resulted in it becoming impossible or unreasonably difficult for him to receive any benefit conferred by the carrying out of a council function. The relevant council function in this case was that of assessing needs for care services. The plain fact is that the claimant received a community care assessment as to his needs as a result of the decisions, in particular the decision of 11 December 2008. Any discriminatory treatment or any failure to make a reasonable adjustment under section 21B is always justified if the acts of the public authority concerned are a proportionate means of achieving a legitimate aim. In my judgment, the application by the council of its eligibility criteria was a proportionate means of achieving a legitimate aim, namely the equitable allocation of limited care resources.”

In my judgment, those observations apply equally here. Indeed, I am sceptical as to whether any relevant policy or practice for the purposes of section 21E(1) exists in this case. It was the duty of the Royal Borough under the welfare legislation to make an appropriate assessment of Ms McDonald’s needs. In doing so, it was entitled to have regard inter alia to its resources (Barry). In having regard to its resources, it was not adopting a policy or practice which conflicted with the requirements of section 21E, but performing its duty. On the evidence, it does not appear to have been adopting a policy or practice whereby its disabled clients, including Ms McDonald, were subjected to impossible or unreasonably difficult or adverse circumstances. But whether that is so or not, and it is ultimately unnecessary to decide that question, there can be no breach of duty where a particular decision can be justified under section 21D, or where it would not be reasonable in all the circumstances to require an authority to change its policy or practice. Ultimately, the question becomes whether a policy or practice is proportionate. Where, as here, the decision – and for these purposes it is only necessary to consider the ultimate reassessment in 2009 and 2010 – was only taken after great pains had been expended in trying to find the correct solution for Ms McDonald, applying FACS, and taking into account not only the question of resources but also her safety, independence and privacy, it seems to me to be impossible to conclude other than that any policy or practice was justified as a proportionate means of achieving a legitimate aim, namely the equitable allocation of limited care resources. In this connection, it has to be remembered that the cost of night-time care for Ms McDonald would be an ongoing liability in the amount of £22,000 a year, a figure which in theory would have to be available for all other clients in Ms McDonald’s situation.

In sum, there is limited success for Ms McDonald under her primary ground, but, going forward, I am unable to conclude that the Royal Borough would be in breach of any duty in putting into effect its Care Plan Reviews of 2009 and 2010. I regret any disappointment for Ms McDonald in this result.

I agree.

I also agree.