JUDGMENT
R (on the application of McDonald) (Appellant) v
Royal Borough of Kensington and Chelsea
(Respondent)
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 Respondent
Stephen Cragg Kelvin Rutledge
Stephen Broach Sian Davies
(Instructed by Disability
Law Service)
(Instructed by Royal
Borough of Kensington
and Chelsea Legal
Services)
Intervener (Age UK)
Ian Wise QC
(Instructed by Irwin
Mitchell LLP)
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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
2. 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
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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.
3. 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.
4. 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
5. 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?
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(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?
(3) 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?
(4) 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
6. 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”).
7. Section 47 of NHSCCA 1990 provides:
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“(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 –
(a) shall carry out an assessment of his needs for those services; and
(b) 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.”
8. 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.
9. 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,
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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).
10. 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.”
11. 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
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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.”
12. 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:
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“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”.
13. 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.
14. 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
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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
15. 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.
16. 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 selfdetermination 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.
17. This approach is consistent too with the domestic jurisprudence on the
point. The appellant seeks to rely on R (Bernard) v Enfield London Borough
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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.
18. 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:
“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.)
19. 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
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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
20. 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.”
21. 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 nighttime 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
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under section 21D(5), namely that its acts are “a proportionate means of achieving
a legitimate aim”.
22. 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
23. 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 –
. . .
(c) the need to promote equality of opportunity between
disabled persons and other persons;
(d) 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
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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.
24. 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).
25. 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.
26. I would dismiss this appeal.
27. 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
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sheltered housing schemes.” In other words, the appellant specifically refused that
very solution which Lady Hale mentions.
LORD WALKER
28. 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.
29. 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 rentfree 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.
30. 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):
Page 15
“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.
31. 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.
Page 16
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.
32. 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.
33. 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
Page 17
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
34. 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.
35. I consider that the respondent authority did not purport to carry out a reassessment 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.
36. 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.
37. 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
Page 18
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 reassessment 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.
38. 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 reassessment 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.
39. 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.
40. 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
Page 19
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
41. 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
42. 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.
43. 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
Page 20
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.
44. 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.
45. 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”.
46. 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.
Page 21
47. 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.
48. On 17 October 2008, the respondent decided to reduce the amount allocated
for Ms McDonald’s weekly care to reflect its view that she did not need a nighttime carer and that pads would meet her toileting needs. This decision was
recorded in a letter dated 21 November 2008. Nevertheless, the Needs Assessment
started on 2 July 2008 (and signed off on 28 October 2008) and the Care Plan
dated 17 November 2008 repeated the description of Ms McDonald’s need as
“assistance to use the commode at night”.
49. In the Care Plan Review dated 4 November 2009, the respondent stated
formally that it had concluded that the current care arrangements exceeded those
reasonably needed to meet Ms McDonald’s toileting needs. It said that it remained
of the view that the use of pads “is a practical and appropriate solution to Ms
McDonald’s night-time toileting needs”. The same view was expressed in the Care
Plan Review dated 15 April 2010 from which Lord Brown has quoted at para 11
above.
50. From this history, the following points emerge. First, it was never in dispute
that Ms McDonald had “toileting needs” and those needs did not change
throughout the relevant period: she needed to urinate three times a night and could
not use a commode unaided. Her toileting needs could be met either by providing a
carer who would assist her to use a commode or by providing pads. No other way
of meeting the needs was canvassed as a possibility. Secondly, Ms McDonald was
always opposed to the use of pads. Thirdly, the respondent was always of the view
that the most practical and appropriate way of meeting her toileting needs was by
using pads. Pads were safer (there was no risk of falls) and cheaper. But in the
knowledge that Ms McDonald was opposed to the use of pads and as a concession,
the respondent agreed to fund the provision of night-time care pending her
application for funding to the ILF. Fourthly, the reassessment of her need in the
Care Plan dated 27 April 2007 (as amended) as “needs assistance at night to use
the commode” did not reflect the respondent’s view either of her need or of the
most practical and appropriate way of meeting it. It was clear that it remained of
the view that the most practical and appropriate way of meeting her toileting needs
was by using pads and that she therefore had a need for the provision of pads.
Page 22
51. In these circumstances, I am very doubtful that it was necessary or
appropriate for the respondent to reassess Ms McDonald’s needs in 2007. Her
condition had not changed and the respondent’s view as to how to deal with it
remained constant. The fact that, as a concession, it made a grant of funding for
night-care (refundable if the application to the ILF was successful) did not require
it to reassess her care needs. Nevertheless, the fact is that the respondent did
describe her need in the 2007 documentation as “assistance to use the commode at
night” and the question raised by the first issue is whether it reassessed her need in
the 2009 Care Plan Review.
52. Like Lord Brown, I entirely endorse para 53 of the judgment of Rix LJ. It is
not in dispute that it is open to a local authority to reassess a person’s needs in a
Care Plan Review. Nor do I understand it to be in issue that the fact that a person’s
underlying presenting need has not changed does not prevent a local authority
from making a reassessment. Provided that it does not act in a Wednesbury
unreasonable way or in breach of a person’s rights under the European Convention
on Human Rights, it is open to an authority to make a reassessment in
circumstances including that (i) there has been a change in the eligibility criteria
for the assessment of needs; (ii) there have been relevant medical or technological
developments which justify a change and (iii) the authority has simply had further
thoughts and changed its mind as to what is the proper assessment of the need.
53. In construing assessments and care plan reviews, it should not be
overlooked that these are documents that are usually drafted by social workers.
They are not drafted by lawyers, nor should they be. They should be construed in a
practical way against the factual background in which they are written and with the
aim of seeking to discover the substance of their true meaning. Adopting that
approach, I am in no doubt that the Care Plan Reviews of 2009 and 2010 contained
reassessments of Ms McDonald’s needs. My reasons are essentially those given by
Rix LJ. I would merely add the following. It is true that the Care Plan Reviews did
not explicitly purport to be reassessments of Ms McDonald’s needs. This is
because the documents stated that it remained the respondent’s view that the use of
pads was a practical and appropriate solution to Ms McDonald’s night-time
toileting needs. As I have said, the respondent’s view as to her night-time toileting
needs had not in fact changed and Ms McDonald could have been in no doubt
about that. It is true that the night-time care needs had been differently described in
the 2007 documentation, but that was only as a concession and on a temporary
basis. Following the decisions of 17 October and 21 November 2008, it must have
been clear that the respondent was withdrawing its concession and that the need
was no longer being assessed as “assistance to use the commode at night”. It is true
that the Care Plan Reviews did not state in terms that the need was being
reassessed from “assistance at night to use the commode” to “toileting needs” or
“the provision of pads for night-time use”. But there can be no doubt that this is
the effect of the words used in the documents. In substance, the respondent was
Page 23
saying in the Care Plan Reviews that it was adhering to the view it had always held
and which had been reflected in the documentation at all times except during the
period of the concession.
54. As regards Mr Cragg’s second point, he submits that there has been a
breach of Direction 2 of the 2004 Directions (set out by Lord Brown at para 10
above) and a breach of the requirements of the FACS guidance that “councils
should ensure that individuals are active partners in the assessment of their needs”
(para 28) and “councils should recognise that individuals are the experts on their
own situation and encourage a partnership approach to assessment”.
55. There is a history of consultation in this case. Since 2006, as Mr Brown
makes clear in his statements, the respondent’s officers have sought to maintain a
productive dialogue with Ms McDonald and her representatives as regards her care
needs. She was consulted in relation to each care plan review. These were
scheduled reviews of which she was given advance warning. Since the meeting on
17 October 2008 (if not before), the respondent sought to agree the care package
with her. Rix LJ was fully justified in concluding at para 42 that:
“It is clear from the facts stated above that the Royal Borough has
taken great pains to consult both Ms McDonald and [her partner]
about Ms McDonald’s needs and their assessment and solution, and
to seek agreement with Ms McDonald about such matters.”
56. For these reasons (as well as those given by Lord Brown) I would dismiss
this appeal. I should add that, since writing this judgment, I have read the
judgments of Lord Walker and Lady Hale. Like Lord Brown, I entirely agree with
what Lord Walker says.
57. Ms McDonald needs to urinate three times a night and cannot safely use a
commode unaided. Her need can be met either by providing a carer or by the
provision of pads. These two very different ways of meeting her need are not
themselves her needs. Of course, if (as Lady Hale does) you define them as needs,
then it is irrational to confuse the two and meet one need in the way that is
appropriate to the other: it obviously makes no sense to say that the need for help
to get to the commode can be met by the provision of pads.
58. But Lady Hale is only able to say that the authority’s decision is irrational
because she has chosen to define the two ways of meeting Ms McDonald’s need as
needs themselves. If the provision of help to get to the commode and the provision
of pads are seen as different ways of meeting Ms McDonald’s need (described
Page 24
above as her “toileting needs”), then the only question is whether the authority’s
decision to opt for the pads solution is unlawful.
59. The unchallenged evidence of Mr Brown cannot be brushed aside in the
way that Lady Hale seeks to do. The use of incontinence pads for patients who are
not clinically incontinent is “both widespread and accepted practice in the
provision of social services” and is “general practice…as a means of ensuring
safety in patients/residents with severely compromised mobility”. The use of pads
was suggested in this case by Ms McDonald’s own GP. In these circumstances, in
my view it is impossible to characterise the authority’s decision as irrational.
60. It is no answer to this evidence to say that there is no evidence that it is
accepted practice “in effect to oblige the client to accept it”. The fact that the client
may have no alternative but to accept the accepted practice does not mean that to
adopt the general practice against the wishes of the client is irrational. And if it is
not irrational, it is not unlawful.
LADY HALE
61. This case is about a really serious question which could affect any one of
us: is it lawful for a local authority to provide incontinence pads (or absorbent
sheets) for a person who is not in fact incontinent but requires help to get to the
lavatory or commode? It raises an important point of law on the proper
interpretation and application of section 2(1) of the Chronically Sick and Disabled
Persons Act 1970 (Alf Morris’s Act). Unfortunately the parties have not addressed
themselves to this point. Instead, most of the argument has focussed upon a much
narrower question which is essentially one of fact: whether two documents
prepared by the local social services authority entitled “care plan review” were to
be taken also as a reassessment of the appellant’s community care needs. This is
not a point of law of general public importance. But there is ample precedent for
this court addressing itself to an important point which has not been argued by the
parties (see, for example, Granatino v Radmacher (formerly Granatino) [2010]
UKSC 42, [2011] 1 AC 534) and in this case we have a relevant intervention from
Age UK, the principal charity working for older people in this country. I propose,
therefore, briefly to address the question which we might have been asked.
62. To do so, it is necessary to explain a little of the background to the
assessment of and entitlement to social care. Since the foundation of the welfare
state in the post war years, local authorities have had power to provide a range of
social services for adults who need them, usually because of age, ill-health or
disability. It is, perhaps, unlikely that the original framers of the legislation
Page 25
envisaged that any of these powers would give rise to an individual entitlement to
be provided with a particular service: they were framed in terms of devising
schemes to provide such services which would be approved by the Minister.
Means-tested benefits, on the other hand, became available to fund
accommodation in residential care. More and more public money was being spent
on old and other vulnerable people living in private or voluntary nursing or care
homes without any professional assessment of whether they actually needed to be
there. This was not only wasteful and inefficient; it was also inconsistent with the
policy aim of enabling people to live independent lives in their own homes for as
long as possible. The system was changed following reports from the Audit
Commission, Making a Reality of Community Care (1986) and Sir Roy Griffiths,
Community Care: Agenda for Action: A Report to the Secretary of State for Social
Services (1988), and a White Paper, Caring for People: Community Care in the
next Decade and Beyond (1989, Cm 849). Local social services authorities were to
be given the task of assessing people’s needs and either providing or arranging
appropriate services for those who needed them to do so.
63. Thus, section 47(1)(a) of the National Health Service and Community Care
Act 1990 requires a local authority to carry out an assessment if it appears that any
person for whom they have power to provide or arrange community care services
may be in need of them. Section 46(3) of the 1990 Act defines “community care
services” as those which a local authority may provide or arrange under four
different statutory regimes, all of which pre-dated the 1990 Act. These include Part
III of the National Assistance Act 1948. Part III was amended to draw a clear
distinction between two sorts of service: residential accommodation for people
who because of “age, illness, disability or any other circumstances are in need of
care and attention which is not otherwise available to them”, under section
21(1)(a), (as amended by section 42(1) of the 1990 Act; and a range of other
services for disabled people, under section 29. As amended by section 195 of, and
paragraph 2 of the Schedule 23 to, the Local Government Act 1972, both sections
provide that the local authority “may with the approval of the Secretary of State,
and to such an extent as he may direct shall” provide the service described for the
identified client group. The requisite approvals and directions are contained in the
Department of Health Local Authority Circular LAC (93)10. This requires that
services be provided for, among others, people who are ordinarily resident in the
local authority’s area. This appellant is a disabled person who ordinarily resides in
the area of the respondent local authority.
64. But are these merely “target” duties, owed towards the relevant population
as a whole, or do they give rise to individual rights? It was held in R v Sefton
Metropolitan Borough Council, Ex p Help the Aged [1997] 4 All ER 532, that
section 21(1)(a) of the 1948 Act does give rise to an individual entitlement to
accommodation once the local authority have decided that the individual fulfils the
statutory criteria. No-one has since challenged that decision and, indeed, it has
Page 26
been assumed to be correct in more than one decision of the House of Lords: see R
(M) v Slough Borough Council [2008] UKHL 52, [2008] 1 WLR 1808.
65. Logically, the position should be the same for both section 21 and section
29, as the relevant wording has been identical since 1972: the observation in R v
Islington London Borough Council, Ex p Rixon [1997] 32 BMLR 136, 139, that
the duties in section 29 were merely “target” duties pre-dated the decision that
section 21(1)(a) created individual rights. (Incidentally, the Law Commission, in
its recent report, Adult Social Care (2011) (Law Com No 326), has recommended
that there should be an enforceable right to all the community care services
required to meet the individual’s eligible needs: para 6.12, recommendation 16.)
66. In any event, it is quite clear that section 2(1) of the Chronically Sick and
Disabled Persons Act 1970 was intended to create an individual right to services if
its criteria were met. So far as relevant to this case, it reads as follows:
“Where a local authority having functions under section 29 of the
National Assistance Act 1948 are satisfied in the case of any person
to whom that section applies who is ordinarily resident in their area
that it is necessary in order to meet the needs of that person for that
authority to make arrangements for all or any of the following
matters, namely –
(a) the provision of practical assistance for that person
in his home; . . .
then, . . . , it shall be the duty of that authority to make those
arrangements in exercise of their functions under the said section
29.”
67. The 1970 Act thus specified certain services which had to be provided for
disabled people who needed them under section 29 and gave those people an
enforceable right to those services. Implicit in that right was a right to have one’s
needs assessed, at least if the local authority were asked to do so. But the matter
was put beyond doubt by section 4 of the Disabled Persons (Services, Consultation
and Representation) Act 1986. This requires that, when requested to do so by or on
behalf of a disabled person, “a local authority shall decide whether the needs of the
disabled person call for the provision by the authority of any services in
accordance with section 2(1) of the 1970 Act”. Significantly, this wording draws a
clear distinction between the “needs of the disabled person” and the services which
should be provided in response.
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68. The duty in section 4 of the 1986 Act remains in force despite the
enactment of the more comprehensive duty in section 47(1) of the 1990 Act. As
section 2(1) services are provided in the exercise of the authority’s functions under
section 29 of the 1948 Act, it has been held that they are also included in the
definition of “community care services” in section 46 of the 1990 Act and thus
within the duty to assess the need for them in section 47(1): see R v Kirklees
Metropolitan Borough Council, Ex p Daykin (1996) 1 CCLR 512. Having carried
out an assessment under section 47(1)(a), section 47(1)(b) requires that the
authority “having regard to the results of that assessment, shall then decide
whether his needs call for the provision by them of any such services”. But not all
community care services are a right, so section 47(2) of the 1990 Act expressly
preserves the special position of disabled people who are entitled to services under
section 2(1) of the 1970 Act. If at any time during an assessment of needs under
section 47(1)(a) it appears that the client is a disabled person, then the authority
must proceed to make a decision as to the services which he requires under the
1970 Act without being requested so to so. This underlines the fact that Parliament
intended to treat the needs of disabled people as a special case. Otherwise, it is
hard to see why they did not simply subsume the former provisions in the new.
69. In sum, disabled people have an individual right to certain services under
section 2(1) of the 1970 Act and a right to have their entitlement to such services
assessed and a decision made under both section 4 of the 1986 Act and section 47
of the 1990 Act. Clearly, it is for the local authority and not the court to make that
assessment. It is for the authority to be satisfied that the criteria are met. But in
doing so they have to ask themselves the right questions and provide rational
answers. The key question is what is meant by “necessary in order to meet the
needs” of the disabled person in section 2(1) of the 1970 Act. These words contain
two separate questions: first, what are the needs of the disabled person; and
second, what is necessary to meet those needs? The second question is then
supplemented by a third: having decided what is necessary to meet those needs, is
it necessary for the local authority to arrange it?
70. In R v Gloucestershire County Council, Ex p Barry [1997] AC 584, the
issue was whether it was lawful for the local authority to take their resources into
account in answering those questions. It was common ground that there was “a
good deal of flexibility” in the arrangements which could be made to meet a
person’s assessed needs. So the authority’s resources could be taken into account
at the second stage, provided always that the need was met. The dispute was over
whether those resources could be taken into account in assessing what the person’s
needs were. Lord Lloyd of Berwick, with whom Lord Steyn agreed, held that they
could not. Lord Nicholls of Birkenhead and Lord Clyde, with whom Lord
Hoffmann agreed, held that they could.
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71. The subsequent Guidance on Adult Social Care, Fair Access to Care
Services, Guidance on Eligibility Criteria for Adult Social Care (2003) sought to
make sense of the distinction which the House of Lords had elided. Thus it
distinguished between a person’s “presenting needs” and her “eligible needs”:
paragraph 2. The presenting needs were those which the client actually had. The
eligible needs were those which the authority were prepared to meet. This
depended upon whether they were assessed as being “critical”, “substantial”,
“moderate” or “low”: paragraph 16. The authority could decide which categories
of need they would meet. This was designed to achieve a good degree of
consistency within authorities as to the needs which would be met, but obviously
produced a considerable disparity between those authorities who would meet only
critical and substantial needs and those authorities who would also meet moderate
or even low needs. The lesson which I learn from this guidance (and from its
replacement, Prioritising Need in the Context of Putting People First: A Whole
System Approach to Eligibility for Social Care (2010)) is that there is an obvious
distinction between what people need and what the authorities are prepared to do
to meet that need. How otherwise can it be the case that a person with a particular
level of need in one local authority area will have that need met but a person with
the same level of need in another local authority will not?
72. Hence I confess that I find the reasoning of the minority in Barry much
more convincing, both as a matter of statutory construction and as a matter of
everyday life, than the reasoning of the majority. There is a clear distinction
between need and what is done to meet it. We all need to eat and drink. Resources
do not come into it. But there are various ways of meeting that need and it is
perfectly sensible to choose the most efficient and economical way of meeting it.
Our nutritional needs can met by simple, wholesome food, rather than by giving us
the expensive foods that we prefer.
73. I could have wished, therefore, that counsel had taken the opportunity
presented by coming to this court to argue that Barry was wrongly decided. It was,
after all, a comparatively recent decision, taken by a bare majority, on a highly
arguable point of statutory construction. Lord Nicholls acknowledged (at p 604C)
that the contrary argument was, at first sight, compelling. The majority view was
obviously heavily influenced by the impossible position in which the local
authority had been put by the government of the time: wishing to maintain the
services which their clients needed but unable to do so because of the combination
of rate-capping and reduction in the central government grant. The principled
view, taken by the minority, was that this was not a good enough reason to
interpret the authority’s statutory duties otherwise than in accordance with their
plain meaning.
74. Without the decision in Barry, it would be easy to answer the question in
this case. If resources did not come into the assessment of need, it would be easy to
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state what a particular individual needed. Everyone needs to urinate and defecate.
People who can control their bladder and/or bowels need a safe and hygienic place
in which to do so. People who cannot control their bladder and/or bowels need
equipment designed to cater for the fact that they cannot avoid performing these
natural functions in the wrong place. The former group of people do not need the
latter equipment although they may need help in getting to the safe place. Once the
need is accurately identified, the most efficient and economical way of meeting it
can be chosen. Just as any parent has to choose whether to use disposable or reusable nappies (to take an obvious example), a local authority can choose the most
efficient and economical equipment to meet the need. Likewise, if the need is for
help to use the lavatory or commode, there may be all sorts of choices available –
as to when, how or even where to offer the service. Thus, it might well have been
open to the local authority to say to Ms McDonald that it was too expensive for
them to provide her with the sort of night time care that she was asking for in her
own flat, but that they could do so in one of the Extra Care Sheltered Housing
Schemes in the borough, or in her own flat through the Homeshare scheme. She
too can be expected to co-operate with the authority in choosing the most
economical and acceptable way of meeting the need that she has.
75. However, I do not think that it is necessary to hold that Barry was wrongly
decided in order to allow this appeal. Section 2(1) clearly does ask two separate
questions. Nothing in Barry denies that. Both of those questions have to be
answered, and answered rationally, in relation to the individual disabled person. It
seems to me that the need for help to get to the lavatory or commode is so different
from the need for protection from uncontrollable bodily functions that it is
irrational to confuse the two, and meet the one need in the way that is appropriate
to the other. Of course, there may well be people who are persuaded that this is in
fact a more convenient, comfortable and safer way of solving the problem; then it
is no longer irrational to meet their need in this way. The authority suggest that this
is “accepted practice” but they cannot point to evidence that it is accepted practice
in effect to oblige the client to accept it. Such Department of Health Guidance as
there is points the other way: that people should not be offered this form of
assistance prematurely, in case they become unnecessarily dependent upon it. The
client should not have to have one need met with the solution to another
76. It is clear from the evidence that this local authority have never been
prepared to fund the night time care which Ms McDonald wants. They only agreed
to do so as a temporary measure while the application to the Independent Living
Fund was being processed. It is not clear why their offer of payment lapsed. But
ever since then they have been trying to reduce the care to the figure which they
have allocated for her. No-one can blame them for that. I dare say that they have
not found Ms McDonald an easy person to deal with. But the fact that they have
been trying so hard for so long to persuade her to accept their point of view does
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not mean that it is a rational view or one which she is bound to accept. For the
reasons already given, I do not think that it is.
77. Furthermore, I am troubled by the implications of the contrary view. A
person in her situation needs this help during the day as well as during the night
and irrespective of whether she needs to urinate or to defecate. Logically, the
decision of the majority in this case would entitle a local authority to withdraw this
help 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. This is not Ms
McDonald’s problem at the moment, but her evidence leaves one in no doubt that
this is one of her fears. Indeed, the majority view would also entitle an authority to
withdraw this help during the day. The only constraint would be how frequently
(or rather how infrequently) it was deemed necessary to change the pads or sheets,
consistently with the avoidance of infection and other hazards such as nappy rash.
The consequences do not bear thinking about.
78. I therefore agree with the argument of the interveners, Age UK, when they
say that it is “irrational in the classic Wednesbury sense” to characterise the
appellant as having a different need from the one which she in fact has. As I
understand it, it would not be regarded as acceptable to treat a hospital patient or
care home resident in this way. Regulation 17 of the Health and Social Care Act
2008 (Regulated Activities) Regulations 2010 (SI 2010/781) requires a registered
person, so far as reasonably practicable, to make suitable arrangements to ensure
the dignity, privacy and independence of service users. The Care Quality
Commission’s Guidance, Essential Standards of Quality and Safety (2010), p 117
requires that people who use services have access to toilets, baths and showers that
enable them to maintain privacy and dignity and are in close proximity to their
living areas. The Commission’s recent Review of Compliance at Ipswich Hospital
NHS Trust found that dignity was not always sufficiently considered because
people were not taken to a toilet away from their bed-space and commodes were
used all the time: p 8. There is no suggestion that people with mobility problems
should not be able to enjoy the same access to toilet facilities as those who do not.
There is no suggestion that it would be acceptable to treat patients in hospital in
the way that it is suggested that someone living in her own home should be treated.
But the overall cost of admitting anyone to residential or nursing care is usually
greater than providing them with what they need in their own homes. The policy
aim underlying all the recent guidance is to help people to live independently in
their own homes for as long as possible.
79. As Lord Lloyd put it in Barry “in every case, simple or complex, the need
of the individual will be assessed against the standards of civilised society as we
know them in the United Kingdom” (p 598F). In the United Kingdom we do not
oblige people who can control their bodily functions to behave as if they cannot do
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so, unless they themselves find this the more convenient course. We are, I still
believe, a civilised society. I would have allowed this appeal.
