Councils’ power to cut services could be restricted by the Supreme Court next week, after the right to an appeal was granted in a landmark case.
In November last year, Elaine McDonald, who is disabled, lost her case to force Kensington and Chelsea Council to continue to fund her night-time care, which provided assistance for her frequent overnight visits to the toilet. The London council blamed the withdrawal of the service on cost.
Kensington and Chelsea has now replaced McDonald’s sleep-in carer with incontinence pads.
But lawyers appealing against the decision have now been granted the right to have the case heard in the Supreme Court on 4 April.
Douglas Joy, senior solicitor at the Disability Law Service, which is fighting the case, funded by the Equality and Human Rights Commission, said: “It’s the highest court in the land. It’s the last chance to score a victory for Elaine.”
Joy will argue that the removal of night-time staff without a new assessment of need breaches community care law. Although McDonald’s care was reviewed in 2009 and 2010, she says she was not aware that this could fundamentally change provision. This, it will be claimed, was tantamount to a failure to meet the guidance on what constitutes a reassessment of need.
Joy will also argue the original decision breaches McDonald’s right to dignity, which is guaranteed by article eight of the European Convention on Human Rights.
In addition, he will claim that McDonald has been discriminated against on the grounds of her disability because the council had failed to make adjustments to services to account for this.
Kensington and Chelsea Council declined to comment.
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