Supreme Court hears key case on level of care packages

An elderly woman is taking her fight with a local authority over its decision to withdraw funding for a night-time carer to the Supreme Court this week.

Elaine McDonald, a former principal ballerina with Scottish Ballet, has a condition that requires her to use a toilet up to three or more times a night.

In November 2008, the Royal Borough of Kensington & Chelsea decided to reduce funding for her weekly care, from an amount that had paid for a night-time carer to an amount which paid for the provision of incontinence pads at night.

Ms McDonald challenged the decision by way of judicial review. However, Frances Patterson QC refused to grant permission to bring judicial review proceedings.

The Court of Appeal also refused the application for judicial review, in a ruling that suggested it was primarily for local authorities to decide on what levels of care they should provide to their residents.

Lawyers for Ms McDonald, whose case is being backed by the Equality and Human Rights Commission (EHRC), said they would use community care, human rights and disability discrimination law to argue that her assessed need should be met.

This will include submitting in the two-day hearing that Article 8 of the European Convention on Human Rights – the right to respect for private and family life – requires her to be provided with a community care service in accordance with her dignity and that the decision to withdraw her night-time care service was a disproportionate interference with her Article 8 rights.

John Wadham, Group Director (Legal) at the ECHR, said: “This case will set an important precedent. With an ageing population and budget pressures, care for older people is an issue that is escalating in scale.

“Older people deserve to be treated with dignity and respect. Providing them with the care they need should be a basic right; local authorities should not be able to override that fundamental human right.”

Ms McDonald said she felt like the council was penalizing her because she wanted to remain independent and did not want to become incontinent.

“On the nights when I don’t have a carer I may have to lie in my own urine and faeces for 12 hours at a time, until my carer arrives the following morning,” she said. “I do not even think that prisoners have to suffer such indignities.”

Philip Hoult