Disability Rights Decision not a 'Green Light' to Cut Services

MANCHESTER, England, July 13, 2011 /PRNewswire/ --

A top 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.

Pannone.com  is a leading solicitors firm in the UK. They specialise in personal injury, medical negligence and family law amongst other areas, on a national scale.