Disability Rights Decision not a ‘Green Light’ to Cut Services

MANCHESTER, England, July 13, 2011 -

A top href="www.pannone.com/services/injury-and-negligence/disability-rights-and-public-law">
disability rights lawyer has said that that despite the Supreme
Court’s decision not to allow former star ballerina, Elaine
McDonald, a night time carer to help her access a commode, the
judgement is not a “green light” for Social Services departments
across the country to cut services.

Richard Copson, an expert in disability rights at Manchester law
firm Pannone commented, “If Social Services departments seek to do
so they must carry out comprehensive assessments of any person’s
care needs. They must have reference to sound legal principles,
policies and procedures, relevant legislation and guidance and
importantly, the human rights of anyone in receipt of or in need of
care services. I would urge Social Services departments throughout
the UK to think long and hard before they try to use this ruling,
decided on particular facts, to justify wholesale cuts.”

The case concerned Elaine McDonald’s appeal against Kensington
and Chelsea’s Social Services Department’s decision in November
2008 to effectively change the night time care she received.

Elaine, a former prima ballerina, had significant care needs
after suffering a stroke, including the need for a night time carer
to assist her in accessing a commode which Kensington initially
funded.

Kensington then re-assessed her needs and proposed that Elaine
use incontinence pads overnight thus avoiding the need for a night
time carer; a significantly cheaper option for them.

Elaine was appalled at the thought of being treated as
incontinent and challenged Kensington’s decision by way of judicial
review proceedings, and then on appeal to the Court of Appeal and
finally to the Supreme Court.

Elaine raised a number of arguments as to why the decision was
unlawful including challenges to Kensington’s policies, on the
basis that it infringed her right to respect for privacy and family
life under Article 8 of the European Convention on Human Rights and
that in reaching the decision Kensington had not properly
considered their general disability equality duty under the
Disability Discrimination Act.

By a majority decision, the Supreme Court decided that
Kensington had not acted unlawfully in effectively re-assessing
Elaine’s care needs.

Hugely disappointing

It is hugely disappointing that the Supreme Court, whilst having
great sympathy for Elaine’s circumstances, were reluctant to engage
in an investigation of the realities and indignities created by
such a decision.

Whilst Elaine may not have been able to overcome the high
hurdles of establishing that Kensington were in breach of legal
duties, it is still very sad that Elaine, like so many vulnerable
people, is left to face undignified restrictions on her
independence.

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