The claimant, a former prima ballerina, had suffered injury as she grew old. She came to suffer a condition requiring her to urinate at several points during each night. The respondent had been providing a carer to stay with her each night to provide the assistance neceesary to access the commode. The claimant now appealed against the failure of her challenge to the withdrawal of that help. She asserted a breach of her article 8 rights.
Held: The appeal failed. The local authority are under a duty to make an assessment of needs under section 47(1)(a) of the 1990 Act and in doing so may take account of their resources. Assessed in the light of the guidance, the Council had in fact assessed the claimants needs as required. Nor could the particular decision be characterised as a policy which might be tested as discriminatory. Lady Hale would have allowed the appeal.
Lord Walker, Lady Hale, Lord Brown, Lord Kerr, Lord Dyson
[2011] UKSC 33, [2011] PTSR 1266, [2011] 4 All ER 881, (2011) 121 BMLR 164, (2011) 14 CCL Rep 341
Bailii, Bailii Summary, SC Summary, SC
Disability Discrimination Act 1995, European Convention on Human Rights 8, National Health Service and Community Care Act 1990 47, National Assistance Act 1948 29(1), Chronically Sick and Disabled Persons Act 1970 2(1)(a)
England and Wales
Citing:
At first instance – McDonald, Regina (On the Application of) v London Borough Of Kensington and Chelsea Admn 5-Mar-2009
The claimant, a former ballerina, challenged the respondent’s decision limiting the care package provided to her in the form of overnight toileting assistance. She said that the change violated her Article 8 rights . .
Cited – Regina v Gloucestershire County Council and Another, Ex Parte Barry HL 21-Mar-1997
The House considered the need when assessing community care provision to include considerations of the cost and resources for care. The case concerned a question about the relevance of cost and arose in the context of a duty to make certain . .
Cited – Botta v Italy ECHR 24-Feb-1998
The claimant, who was disabled, said that his Article 8 rights were infringed because, in breach of Italian law, there were no facilities to enable him to get to the sea when he went on holiday.
Held: ‘Private life . . includes a person’s . .
Cited – Anufrijeva v Secretary of State for the Home Department CA 22-Mar-2002
Three asylum-seekers brought claims of breach of their Article 8 rights. One complained of a local authority’s failure to provide accommodation to meet special needs, the other two of maladministration and delay in the handling of their asylum . .
Cited – Bernard, Regina (on the Application of) v London Borough of Enfield Admn 25-Oct-2002
The claimants were husband and wife. They had six children. The wife was severely disabled and confined to a wheelchair. In breach of their duty under section 21(1)(a) of the 1948 Act, the respondent council failed for some 20 months to provide the . .
Appeal from – McDonald, Regina (on The Application of) v Royal Borough of Kensington and Chelsea CA 13-Oct-2010
The claimant said that the wihdrawal of overnight support to her at home was unlawful.
Held: The claim failed. Her requirement was a need to urinate safely at night, which was satisfied by the new arrangement. . .
Cited by:
Cited – KM, Regina (on The Application of) v Cambridgeshire County Council SC 31-May-2012
The respondent had assessed the claimant’s annual care needs. He challenged the calculations. The authority had a system which calculated the average needs for support adding a sum to reflect particular critical need. An independent expert had . .
Lists of cited by and citing cases may be incomplete.
Local Government, Health, Human Rights
Updated: 09 November 2021; Ref: scu.441501