National Health Service—Health authority—Nursing care

Supreme Court, Lord Walker, Lady Hale, Lord Brown, Lord Kerr and Lord Dyson SJJ, 6 Jul 2011

It was not unlawful of a local authority to require a disabled claimant who suffered from a small and neurogenic bladder to use incontinence pads during the night as part of a care plan even though she was not actually incontinent.

Stephen Cragg and Stephen Broach (instructed by Disability Law Service) for the claimant. Kelvin Rutledge and Sian Davies (instructed by Royal Borough of Kensington and Chelsea Legal Services) for the authority. Ian Wise QC (instructed by Irwin Mitchell LLP) for the intervening party, Age UK.

The claimant suffered an incapacitating stroke in 1999. The defendant, her local authority, was required by s 47 of the National Health Service and Community Care Act 1990 to assess needs, and to decide by reference to that assessment whether the provision of relevant services was required before making arrangements for the provision of those services. The claimant also suffered from a small and neurogenic bladder which caused her to urinate between two to three times a night. She dealt with that by accessing a commode with the help of a carer, provided by the authority. The authority proposed that the claimant should use incontinence pads to avoid the need for a night-time carer. That would reduce the cost of her care by some £22,000 per annum. The claimant was not incontinent and she opposed being treated as such. She sought judicial review of the authority’s decision, relying on Art 8 of the European Convention on Human Rights. The judge held that it was open to the authority to meet the claimant’s need for “safe urination at night” in a more economical manner, by the provision of pads. The Court of Appeal held that the authority was in breach of its statutory duty, but that, since the need had been reassessed in subsequent care plan reviews in November 2009 and April 2010 the claimant had no substantial complaint. The claims therefore failed and the claimant appealed to the Supreme Court.

Lord Brown:

Four issues had been identified by the parties: (i) whether the Court of Appeal had correctly held that the 2009 and 2010 care plan reviews were to be read as including a reassessment of the claimant’s community care needs; (ii) whether the authority’s decision to provide pads interfered with the claimant’s Art 8 rights and, if so, whether such an interference was justified and proportionate; (iii) whether the authority had been operating any relevant policy or practice for the purposes of s 21E(1) of the Disability Discrimination Act 1995 (DDA 1995) and, if so, whether that policy was justified as a proportionate means of achieving a legitimate aim, namely the equitable allocation of limited care resources; and (iv) whether the authority had failed to have due regard to the needs specified in s 49A of DDA 1995 (the general disability equality duty) when carrying out their functions in the instant case. Consideration was given to the secretary of state’s directions: the Fair Access to Care Services Guidance (FACS), which was in force until February 2010, and the Community Care Assessment Directions 2004 (the 2004 Directions).

As to the first issue, it was established that local authorities were under a duty to make an assessment of needs under s 47(1)(a) of the 1990 Act and, in so doing, were entitled to take account of their resources. His lordship agreed with Rix LJ in the Court of Appeal below that the 2009 and 2010 reviews were to be read as including a reassessment of the claimant’s needs. He added that the respondents could hardly have gone further in compliance with the secretary of state’s directions in their efforts to consult the claimant and if possible agree with her the services they were considering providing.

As to the second issue, the claimant could not establish an interference with her Art 8 right. Even if established, it would be clearly justified under Art 8(2) on the grounds that it was necessary for the economic well-being of the authority and the interest of their other service-users, and was a proportionate response to the claimant’s needs because it afforded her the maximum protection from injury, greater privacy and independence, and resulted in a substantial costs saving.

As to the third issue, it was impossible to regard the authority’s decision as the manifestation or application of anything that could be characterised as a “practice, policy or procedure”, for the purposes of s 21E(1) of DDA 1995. The authority was doing no more and no less than its statutory duty. Even were that not so, the authority’s acts had to be regarded as constituting a proportionate means of achieving a legitimate aim.

As to the fourth issue, where, as in the instant case, the person concerned was ex-hypothesi disabled and the public authority was discharging its functions under statutes which expressly directed its attention to the needs of the disabled persons, it might be entirely superfluous to make express reference to s 49A of the 1995 Act and absurd to infer from an omission to do so a failure on the authority’s part to have regard to their general duty under that section. That was the position in the instant case. His lordship added that ss 21 and 49A of DDA 1995 had been superseded by broadly comparable provisions in the Equality Act 2010.

Lord Walker, Lord Kerr and Lord Dyson delivered concurring judgments, and Lady Hale dissented.