Supreme Court upholds councils’ right to cut care packages

Councils’ right to cut people’s care without an explicit reassessment of need was upheld in a Supreme Court judgement today.

Elaine McDonald lost an appeal to get her night-time care reinstated after it was cut by Kensington and Chelsea Council last year. The council had reduced the number of nights it provided a carer to assist McDonald to the toilet and instead insisted that McDonald used incontinence pads.

McDonald had claimed that two reviews of her care package in 2009 and 2010 had not constituted a reassessment of her actual needs, only a review of how care was provided.

Douglas Joy, senior solicitor at the Disability Law Service, which brought the case, said: “Elaine is very disappointed and upset for herself but also for other people, both elderly and disabled.”

Joy said it had given carte blanche to local authorities to reassess people’s need and reduce people’s care packages with little warning. “It makes the assessment procedure less formal,” he said. “It raises the possibility that a social worker may just have chat about the care package and suddenly the service user finds their care package has been reduced.”

He said that if local authorities with stretched budgets were to take this route it could lead to increased distrust of social workers by their clients.

However, today four of the five judges hearing the case rejected her pleas.

Lord Dyson said: “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.”

The consequences of the decision “do not bear thinking about” said Lady Hale, the one dissenting judge in the case.

“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,” said Hale.

“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,” she added.

McDonald has said that she will pursue the case in the European Court of Human Right, pending funding.

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