The Court of Human Rights in Strasbourg awarded €12,500 inclusive of legal costs to British woman Elaine McDonald after it found that Kensington and Chelsea Council had breached her human rights when cutting her care package.
Ms McDonald, a former ballerina, started judicial review proceedings against Kensington and Chelsea Council in 2008 after it reduced the amount of overnight care it was willing to provide. This reduction in care amounted to a saving for the local authority of £22,270 a year. Without overnight care to support her accessing a commode, Ms McDonald, who is left with limited mobility after suffering a stroke, would have to wait until a carer arrived in the morning to assist her. Ms McDonald was not incontinent and found the prospect of being treated as incontinent when she wasn’t to be grossly undignified. She argued that this decision failed to meet her assessed need and constituted an unlawful interference with her right to family and private life.
The Supreme Court heard the matter in 2011. Despite a legal intervention by Irwin Mitchell upon instructions from Age UK, it was decided that the decision to withdraw the overnight carer was lawful and did not amount to a breach of Ms McDonald’s human rights because it was proportionate and in the interests of other service users. Ms McDonald continued her fight to the European Court of Human Rights in Strasbourg.
Violation of human rights
On 20 May 2014 the Court held unanimously that that there had been a violation of Ms McDonald’s Article 8 rights under the European Convention on Human Rights to a private and family life between 21 November 2008 and 4 November 2009, on the basis that the care reduction was not in accordance with domestic law at the time. This hinges on the fact that the local authority had communicated their decision to reduce the care package in a letter and, in the re-assessment of need conducted in November 2008, continued to describe Ms McDonald’s need as “assistance to use the commode at night”. By not providing the assistance as described, the local authority was acting unlawfully.
The Court found that on 4 November 2009 the local authority had carried out a lawful reassessment of need. Crucially, the Court confirmed that member states have a wide margin of appreciation in social, economic and healthcare policy when allocating limited resources and that it was not the role of Court to interfere.
Local authorities required to consider a person's dignity
Whilst Ms McDonald will undoubtedly be disappointed by parts of the ruling, the judgment is significant in advancing the rights of disabled people when faced with cuts to their care packages. The European Court made it clear that local authorities are required to consider a person’s dignity when assessing and meeting their needs, and that reductions in care packages are at least capable of amounting to infringements of their human rights. The judgment makes clear that where care packages are reduced without lawful reassessment, a breach of Article 8 may have occurred.
For expert advice on matters relating to community care law, please contact Alex Rook of Irwin Mitchell's public law team on 0370 1500 100 or complete our enquiry form.
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