EHRM, 20-05-2014, nr. 4241/12

The applicant was born in 1943 and lives in London.

The applicant suffered an incapacitating stroke in September 1999 which left her with severely limited mobility. In April 2006 she fell heavily, breaking her hip in several places. She then suffered two further falls, both of which resulted in further hospitalisation.

The applicant has a small and neurogenic bladder. As a result, she usually has to urinate some two to three times a night. On account of her mobility problems she is unable safely to access a toilet or commode unaided.

In March 2007, after the applicant's third fall, she applied to the Independent Living Fund (‘ILF’) for full day and night support. While the application was pending she was provided with a care package by the local authority (the Royal Borough of Kensington and Chelsea) which included seventy hours per week of night-time care. The application to the ILF was ultimately unsuccessful as the applicant ceased to be eligible for funding when she turned sixty-five in 2008.

A local authority care plan dated 27 April 2007 indicated that the applicant needed ‘assistance with toileting, when it's required during the night’. Likewise, the FACE (Functional Analysis of Care Environments) Overview assessment which followed on 8 January 2008 noted that ‘Miss McDonald needs assistance to manage continence at night. Substantial need.’

However, the FACE Overview Assessment was subsequently amended to read ‘Miss McDonald needs assistance at night to use the commode. Moderate need.’

A further Needs Assessment was started on 19 February 2008 and signed off on 29 February 2008. It noted:

A further Needs Assessment signed off on 28 October 2008 concluded that ‘Miss McDonald needs assistance to use the commode at night. Substantial need.’ This assessment was subsequently described by Lord Dyson as ‘a concession’ granted on a ‘temporary basis’ (see paragraph 53 of the opinion of the Supreme Court).

On 17 October 2008 a formal decision was taken to reduce the amount allocated for the applicant's weekly care from GBP 703 to GBP 450. This figure appears to have been assessed on the basis that the applicant would be provided with incontinence pads in lieu of night-time care. This decision was taken at a meeting between the local authority and the applicant at the applicant's home. She was formally notified of the decision by letter dated 21 November 2008. It noted that:

On 22 December 2008 the applicant sought permission to apply for judicial review on the ground that the local authority was unreasonably and unlawfully failing to meet her assessed and eligible needs. She further submitted that the local authorities' actions would cause her to suffer indignity which would amount to an interference with her right to respect for her private life in breach of Article 8 of the Convention.

Pending judicial consideration of the applicant's complaints, a ‘holding compromise’ was reached: from November 2008 to December 2008 she continued to receive night-time care five days a week and between December 2008 and September 2011 she received night-time care four nights a week. During this period the applicant's partner stayed with her when night-time care wasn't provided in order to assist her. In September 2011 all night-time care was withdrawn.

On 5 March 2009 the application was refused by a Deputy High Court Judge. Although the judge accepted that the local authority was obliged to meet the applicant's assessed need, she found that the assessed need was not ‘assistance to use the commode at night’ but rather ensuring the applicant's safety. The judge considered there to be two ways to meet that need: the provision of a night-time carer or the provision of incontinence pads. The statutory scheme requiring that the applicant's needs be met allowed the local authority some flexibility about how that was to be done and the local authority was therefore quite entitled to meet the need in the most economic manner. The judge further considered the applicant's complaints under Article 8 of the Convention to be ‘parasitic’ upon the first ground being established and did not, therefore, consider that they raised any issues which needed to be gone into.

Following that decision, the local authority carried out a Care Plan Review. The review, which was dated 4 November 2009, concluded that

After a visit to the applicant's home on 15 April 2010, a further Care Plan Review was conducted. It was noted that ‘Ms McDonald did not want to discuss the option of using incontinence pads or Kylie sheets (absorbent sheets) as a way of meeting her toileting needs’. The Review concluded:

The applicant applied to the Court of Appeal for permission to appeal against the refusal of permission to apply for judicial review on the grounds first, that the reduction in funding was inconsistent with the assessment of her night-time needs; secondly, that the reduction in funding violated her rights under Article 8 of the Convention; and thirdly, that in reducing her funding the local authority had failed to comply with its obligations under the Disability Discrimination Act 1995. In particular, she argued that if forced to use incontinence pads she would ‘lose all sense of dignity’ and, as a consequence, she would suffer considerable distress. The local authority submitted that the provision of a night-time carer would cost GBP 22,270 per year, which would have to be paid out of the adult social care budget from which all other community care services for adults in the applicant's borough were funded. The local authority also argued that the use of pads would ensure the applicant's safety and provide her with greater privacy and independence in her own home. Finally, the local authority submitted that the weekly funding of GBP 450 could be used according to the applicant's preferences. She could therefore pay for a bedtime visit for the purpose of fitting the pads, and even a subsequent visit if necessary.

Upon the applicant's application for permission to appeal, a single Lord Justice granted permission and directed that the claim for judicial review should be heard by the Court of Appeal. In a decision dated 13 October 2010 the Court of Appeal departed from the judgment of the Administrative Court insofar as it did not consider that it was appropriate for the courts to re-categorise the applicant's needs as assessed by the local authority. It therefore found that between 21 November 2008 (the date of the disputed decision letter) and 4 November 2009 (the date of its first care plan review) the applicant's assessed need had been for assistance to use a commode. In failing to provide such assistance, the local authority had been in breach of its statutory duty. However, it had mitigated the breach by entering into an arrangement with the applicant's partner. Moreover, the 21 November 2008 decision had not been put into operation and applicant's need had been reassessed in the Care Plan Reviews of November 2009 and April 2010. As a consequence, the court found that the applicant had no substantive complaint under this head.

With regard to the complaint under Article 8 of the Convention, the Court of Appeal found that the conditions for finding a breach had not been established. Even though the local authority had failed in its duty at the time of its November 2008 decision, the error was not born of any lack of respect for the applicant's dignity but of a concern to perform the difficult task of balancing its desire to assist the applicant with its responsibilities to all its clients within the limited resources available to it.

Finally, the court held that there had been no failure to comply with any obligations under the Disability Discrimination Act 1995.

The applicant was granted permission to appeal to the Supreme Court. She argued that: the Court of Appeal had been wrong to hold that the 2009 and 2010 Care Plan Reviews were to be read as including a reassessment of her needs; the decision to provide her with incontinence pads instead of a night-time carer had unjustifiably interfered with her rights under Article 8; and there had been a failure to comply with the Disability Discrimination Act 1995.

By a majority, the Supreme Court agreed with the Court of Appeal that the applicant's needs had been reassessed on 4 November 2009, as the local authority had been entitled to do; that, from that date onwards, there had been no interference with the applicant's rights under Article 8 of the Convention; and that there had been no failure to comply with the Disability Discrimination Act 1995.

With regard to the complaint under Article 8, Lord Brown observed that even if a direct link existed between the measures sought by the applicant and her private life, the clear and consistent jurisprudence of this Court established that States enjoyed a wide margin of appreciation in striking a fair balance between the competing interests of the individual and of the community as a whole. He went on to state that:

In her dissenting opinion, Lady Hale considered that the need for help to get to the lavatory or commode was so different from the need for protection from uncontrollable bodily functions that it was irrational to confuse the two and to meet the need for one in a manner appropriate for the other. She would therefore have allowed the appeal.

Section 47 of the National Health Service and Community Care Act 1990 (‘the 1990 Act’) provides that:

Disabled persons also have an individual right to certain services under section 2(1) of the Chronically Sick and Disabled Persons Act 1970 (‘the 1970 Act’), which reads as follows:

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’ was a relative concept and that needs for services could not 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 could not be decided in a vacuum from which all other considerations of cost had been expelled. Consequently, the position subsequently established was that the local authority was under a duty to make an assessment of needs under section 47(1)(a) of the 1990 Act and in doing so might take account of its resources. If the need fell into one of the four bands described in the Fair Access to Care Services (‘FACS’) Guidance (critical, substantial, moderate or low) — which, having regard to its resources, the local authority had indicated it would meet — then it had to meet that need. In deciding how to meet the need, the local authority was entitled to take account of its resources.

The FACS Guidance issued on 1 January 2003 (which remained in force until new guidance was issued in February 2010) provided, as relevant, that: councils should ensure that individuals in similar circumstances receive services capable of achieving broadly similar outcomes; reviews should be undertaken at regular intervals to ensure that the care provided to individuals is still required and is achieving the agreed outcomes; and that reviews should establish how far the services provided have achieved the outcomes set out in the care plan, reassess the needs and circumstances of individual service users, help determine individuals' continued eligibility for support, and confirm or amend the current care plan.

The applicant complained under Article 8 of the Convention that the withdrawal of night-time care disproportionately interfered with her right to respect for her private life. In the alternative, she complained that by withdrawing the service the respondent State was in breach of its positive obligation to provide her with a service which enabled her to live with dignity. Article 8 of the Convention reads as follows:

The Government contested that argument.

Article 41 of the Convention provides: