R (on the application of Elaine McDonald) V Kensington & Chelsea London Borough Council (2009) QBD (Admin) 5/3/2009

The claimant, M, had been in receipt of community care services following a stroke 10 years ago which had caused severely limited mobility and a neurogenic bladder. This meant that she required frequent trips to the toilet to urinate but was not incontinent. She had a history of falls relating to her reduced mobility which had resulted in hospitalisation, on one occasion for a broken hip. Previously the Local Authority’s assessment of her needs had identified a need for night time supervision, to assist her to her commode and provided 70 hours a week of night time supervision as well as day time services. Following the most recent assessment, where her needs were deemed substantial, the Local Authority notified M that they intended to reduce her care package from £703 to £450 per week, on the basis that she could use incontinency pads at night rather than nightly supervision to manage her neurogenic bladder, because this would reduce the cost to the Local Authority. M challenged this decision, by way of Judicial Review, on the basis that the Local Authority’s decision was unlawful and unreasonable as it failed to meet the duty as set out in s.47 of the NHSCCA 1990 and the Fair Access to Care Services eligibility criteria. Furthermore, she argued that by withdrawing the night time supervision and support they were exposing her to risk, and/or effectively treating her as incontinent when she was not, causing her indignity in breach of her right to respect for private and family life under Article 8 of the ECHR. The Local Authority defended the proceedings on the basis that the night time provision had only meant to be a temporary measure whilst she apply for funding from another source and that they were entitled under the FACS guidance to meet assessed need in the most economical manner. The use of incontinence pads not only effectively managed her bladder complaint and her risk of falling but did so in a cost effective manner. 

The Court, rejecting the application, confirmed that whilst the Local Authority must meet any assessed need they were entitled to do so in the most economical manner. The Court considered whether M had a need to use a commode at night or rather whether her need was in fact how best to manage her neurogenic bladder at night to protect her against a risk of falling. Having determined that her need was primarily one of how she could safely cope with the bladder complaint the Court found that the FACS statutory scheme allowed the Local Authority to determine how best to meet this need in a cost effective manner, either through night time support and supervision or, as they had later chosen, by the provision and use of incontinence pads. The Court declined to address the article 8 issue as unnecessary because a potential breach would only arise if the Local Authority had acted in a way inconsistent with its statutory duties under the scheme.

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