Controversial court judgement ‘used to justify care cuts’

Councils are using a controversial legal decision to justify restricting a person’s access to food and drink to cut costs, a care lawyer has claimed.

A Court of Appeal ruling last November has allowed councils to cut people’s care without a full reassessment of their needs, it is claimed.

The case, which concerns Kensington and Chelsea’s decision to reduce the care package of disabled woman Elaine McDonald, is currently being heard in the Supreme Court as lawyers try to get the ruling reversed.

The case hinges on whether two reviews of McDonald’s care in 2009 and 2010 constituted a proper reassessment of her needs and therefore justify Kensington and Chelsea’s decision to remove funding for a carer to help McDonald urinate at night and provide incontinence pads instead.

However, in the wake of the Court of Appeal judgement, other councils have started using it to justify cuts to care packages, said Catriona Hauser, solicitor and MS legal officer at the Disability Law Service, which is representing McDonald.

“I’m expecting more,” she said.

Hauser said she was currently dealing with one case in which an MS sufferer who had difficulty with swallowing was having their access to food and drink restricted to those times of the day when the council agreed to provide a carer to supervise them.

“Councils are putting safety above choice or independence,” claimed Hauser.

At the Supreme Court yesterday, McDonald’s barrister, Stephen Cragg, said she was “embarrassed and humiliated” at the council’s decision that she should use incontinence pads at night.

The council has argued that care reviews conducted in 2009 and 2010 constituted a reassessment of need, meaning it was entitled to change its provision.

However, Cragg said McDonald was not aware of the nature of the reviews and claimed the reviews did not meet the necessary standards to constitute a reassessments of need – contrary to the judgement of the Court of Appeal.

Cragg also argued that the council’s decision breached McDonald’s right to dignity under the European Convention of Human Rights and that it had discriminated against her on the grounds of disability by treating her need for mobility to reach the toilet at night as incontinence.

Both of these arguments were rejected by the Court of Appeal.

It ruled that the council conducted itself with respect for McDonald’s dignity, and had not breached the Disability Discrmination Act 1995 because it had made an appropriate assessment of her needs and was entitled to consider its resources in determining her care package.

The council is presenting its response to the Supreme Court today.

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