The European Court has ruled on a challenge brought by Elaine McDonald, a user of social care services in Kensington and Chelsea, regarding reductions to her care package which amounted to a denial of dignity. This ruling is the final stage in a series of cases that have included the UK Appeal Court and Supreme Court. Age UK intervened in the Supreme Court case.
At the heart of the dispute is the issue of whether someone who is not incontinent should be expected to wear incontinence pads rather than being assisted to use the toilet at night. Ms McDonald has argued that being required to do this is a breach of her human rights.
UK courts, including the Supreme Court, accepted that Kensington and Chelsea’s decision to remove night time care was unlawful in English law as it was implemented without carrying out a proper reassessment of need. However UK courts have not accepted that this involved a breach of human rights, or that the council acted unlawfully in withdrawing care once (a year after the initial decision) it finally completed an assessment.
The European Court has upheld the position of the UK courts, except in one crucial respect. The European Court has ruled that, prior to carrying out an assessment, the council did in fact breach Ms.McDonald’s rights under Article 8 of the European Convention on Human Rights, the right to respect for private and family life.
The immediate practical impact of this decision is that Ms. McDonald has been awarded modest damages and costs. However, the case has wider implications which stem from the reasoning behind the European Court’s ruling.
Firstly, the European Court accepts that a denial of dignity can be a denial of human rights. Referring to the UK Supreme Court ruling, the Court says (paragraph 47) ‘In the Supreme Court, Baroness Hale, in her dissenting opinion, appeared to accept that considerations of human dignity were engaged when someone who could control her bodily functions was obliged to behave as if she could not.
The Court agrees with this general assessment of the applicant’s situation. It therefore finds that the contested measure reducing the level of her healthcare falls within the scope of Article 8’. Previous UK cases have made links between the concept of dignity and human rights, but this is the first time that the European Court has done this.
Secondly the Court makes clear that the withdrawal of a service can result in a breach of human rights, even though the result of such a decision is inaction by the local authority rather than any specific action that breaches human rights.
The result of this decision is that local authorities will still be able to reduce or cut services provided that they comply with UK law. However, in doing this they will need to properly consider the impact of their decision on individuals – failure to do so could amount to a breach of European Convention Rights.
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