Local authority care

Should local authority pay for care?

Understanding how local authorities make decisions as to entitlement to care is not easy. So a case before one of our higher Courts which examines the question is a great help. An important case about local authority and payment for care came before the Court of Appeal through an application for judicial review. The Court was asked to decide if a public authority exercised its decision making powers correctly.

The point at issue was whether the Council could change the help it gave without a change in a person’s circumstances.

The case involved Elaine McDonald, 67, a former Scottish Ballet principal. We would like to tell you more.

Ms McDonald suffered a stroke in 1999 and needs support to continue living on her own in her Earl’s Court flat. She has both mobility problems and problems with her bladder which mean she needs to use the toilet frequently at night.

In 2008, she fell and broke her hip and was assessed by Kensington and Chelsea as having an eligible need for support both during the day and “assistance at night to use the commode”. The assistance was to prevent falls.

Once an “eligible” need is determined, a local authority must, by law, provide services to meet that need. Initially Kensington and Chelsea provided a sleep-in care worker for seven nights a week but later decided that it could save £22,000 a year by supplying Ms McDonald with incontinence pads for use at night and cutting care support to four-nights-a-week.

Two excerpts from the Court of Appeal judgment will help you understand the decision:

“The significance of that issue is this: if the assessed need is to use the commode, then the Royal Borough is at law bound by its statutory duty to meet that need irrespective of its cost and the impact such cost may have on its resources. Although the Royal Borough would in general be entitled to have regard to resources in determining how to meet needs, nevertheless having defined Ms McDonald’s need in such a specific way, it would be required to assist her to use her commode at night, and that would require a night-time carer to assist her to access her commode. If, however, the proper view of the assessed need is more generally in terms of safe urination at night, then the Royal Borough would be entitled to have regard to resources as to how that need might be met, and it would be entitled, subject to some further arguments raised on behalf of Ms McDonald concerning article 8 of the European Convention on Human Rights (the “ECHR”) and the Disability Discrimination Act 1995 (the “DDA 1995”), to decide, as it has, that a reasonable and adequate solution is the use of pads.”

“The Royal Borough’s ultimate decision to meet Ms  McDonald’s reassessed night-time toileting need by the use of pads was a reasonable decision. The Royal Borough has acted cautiously and generously in seeking to accommodate Ms  McDonald’s wishes. However, it is responsible also for acting on behalf of the interests of all the clients whose welfare it supports with the use of limited resources. The evidence is that the use of pads in circumstances such as those which afflict Ms  McDonald is a widespread, satisfactory and accepted practice. Although it does not suit Ms  McDonald’s preferences, and it cannot make for perfection in a difficult situation, it provides safety and a large degree of independence and privacy.”

This decision upholds a council’s right to change a care plan where a cheaper alternative is available. The key question is whether the alternative is suitable. In this case the Court thought that it was.

The challenge, taken on McDonald’s behalf by the Disability Law Service (DLS), a charity, and backed latterly by the Equality and Human Rights Commission, reached the appeal court for judicial review earlier this year.

A report in the Guardian quoted Douglas Joy, senior solicitor at the DLS, who believes the case could have widespread consequences and efforts were being made to take it to the Supreme Court for a definitive ruling.

Kensington and Chelsea had not conducted a formal reassessment of McDonald’s needs but merely reviewed her care plan, Mr Joy said. “We’re very concerned at the implication that local authorities may be able to implement reassessments by stealth in this way. What previously would have been an update, or a check on how things were going, could now be assumed to be an assessment.”

The sources I have used can be seen at:

The Guardian

Tcell.org.uk

Disability Law Service

Bailli.org where the full Judgment can be read.

The provision of care by the NHS and local authorities is a constant theme for those who have suffered personal injury, particularly those seriously injured. When compensation is calculated credit does not have to be given for NHS responsibility for medical treatment, and credit should not be given for local authority support. Insurers will argue that where a local authority is providing support they ought to have credit within the compensation calculation. This case tells us that support provided one day may well be gone tomorrow. As purse strings are tightened even more relying on local authorities for care needs looks increasingly precarious.

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About Mark Thompson

Personal injury and accident specialist solicitor

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