R (Macdonald) v Royal Borough of Kensington and Chelsea [2011] UKSC 33

06 July 2011

Link to judgment


Summary of case
Ms McDonald suffered from a condition which required her to access a toilet three or more times a night. Owing to her physical frailty (caused as a result of a stroke), such access had resulted in a number of falls some of which had necessitated her hospitalisation. Consequently she had been assessed as requiring assistance accessing a commode to toilet at night. The council proposed to withdraw funding for a night-time carer and provide incontinence pads instead. The proposal would have reduced the cost of Ms McDonald’s care by £22,000 per annum but Ms McDonald considered that the proposal was an ‘intolerable affront to her dignity’ in circumstances where she was not incontinent and did not wish to be treated as though she was.

The Supreme Court upheld the Council’s right to amend a care plan where a cheaper alternative is available. The key was whether the alternative is suitable. In this case, by a majority, the Court thought that it was.

The Supreme Court agreed that the Council may not operate any ‘practice, policy or procedure’ which makes it impossible or unreasonably difficult for disabled persons to receive any benefit conferred on them. However, they concluded that Ms McDonald failed to show that the Council’s decision could properly be characterised as ‘practice, policy or procedure’ and thus the Council did not breach its Section 21 duty. Even if that were not so, the Council’s actions would have been justified as constituting ‘a proportionate means of achieving a legitimate aim’.

Where the council is discharging its functions under statutes which expressly direct its attention to the needs of the disabled persons, it may be entirely superfluous to make express reference to the Equality Duty. It would be absurd on the facts of the present case to infer a breach of the equality duty from a failure to refer to it.

In Lady Hale’s dissenting judgment she would have allowed Ms McDonald’s appeal on a different basis, namely that it was irrational for the Royal Borough to characterise Ms McDonald as having a need different from one she actually has.

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