Appeal court ruling clears way for councils to cut social care services

Kensington and Chelsea acted lawfully in withdrawing care for former ballerina despite unchanged circumstances, say judges

Local councils have been given the green light by the courts to cut social care services to elderly and disabled people previously assessed by law as needing them.

In a test case involving care support for a woman who was one of Britain’s leading ballerinas, the appeal court ruled that Kensington and Chelsea council in west London acted lawfully and reasonably in withdrawing some services to save money.

The judgment could affect services to hundreds of thousands of vulnerable adults, including care at home, meals-on-wheels, escorted transport and places at day centres.

Councils face a 26% cut in grants over the next four years, although the government says it is providing enough funding for social care to be protected. The focus until now has been on tightening eligibility for people not yet receiving services.

The Kensington and Chelsea ruling appears to clear the way for councils to cut services already being provided, even if the individual’s needs are unchanged.

Luke Clements, professor of law at Cardiff University and a leading expert on care legislation, described the judgment as “chilling”. He said: “There are two problems with this approach: one, a narrow legal one and the other that it is an indictment of any society that lays claim to be civilised.”

The test case involved Elaine McDonald, 67, who was a Scottish Ballet principal ballerina considered by some critics to be Britain’s finest classical ballerina of her day.

After a stroke in 1999, McDonald has restricted mobility and needs support to continue living on her own in her Earl’s Court flat. Problems with her bladder mean she needs to use the toilet frequently at night.

In 2008, after falling and breaking her hip at night, she 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”.

Once an “eligible” need is determined, a local authority must by law provide services to meet that need. Kensington and Chelsea provided a sleep-in care worker seven nights a week.

Subsequently, the council decided McDonald’s needs could be met more cheaply – saving £22,000 a year – by supplying her with incontinence pads for use at night. Before a legal challenge could be started, care cover was cut to four nights a week as a first step.

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. The case has been watched closely by councils across the country.

The court’s reserved judgment finds that the council was wrong to reduce the care in the way it did, but upholds its action in later reviewing McDonald’s case and concluding that she had a “more general” eligible need for night support that could be met by the provision of pads.

The judgment, by Lords Justice Rix and Wilson and Sir David Keene, says the council acted “cautiously and generously” in seeking to accommodate McDonald’s needs and wishes and reached a reasonable decision.

“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 autonomy.”

Douglas Joy, senior solicitor at the DLS, said 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, 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 assesment.”

McDonald, who is still receiving the four-nights-a-week care and relying on a friend to help her on other nights, said she considered it an affront to her dignity to be expected to sleep in incontinence pads.

“They say they have taken account of my personal integrity. That’s absolutely and completely untrue. I don’t see what’s dignified about having somebody cleaning me up and clearing up the mess in the morning.

“I can speak up for myself, but what worries me is what’s going to happen to people who can’t, people who might have dementia, if they are treated like this?”

Kensington and Chelsea, which is Conservative-controlled and Britain’s wealthiest borough, said the case was “immensely important”. It was pleased that the appeal court had acknowledged the difficult decisions it had to make and its duty to consider the use of available resources for others in need.

“Everyone understands that this resident has a strong preference for a night-time carer,” said Julie Mills, the council’s cabinet member for adult social care. “However, the sad reality is that urinary problems are a very common feature of growing older.

“The financial costs of providing personal care of this kind would be prohibitive and would compromise our ability to look after our vulnerable residents.”