Jul 062011

By Stuart Bracking

Disabled People Against Cuts believes the Supreme Court’s majority decision to reject Elaine McDonald’s appeal to keep her overnight personal assistants to help her with regular personal care tasks is a major setback for disabled people of all ages and their families.

This judgment will give a green light to local authorities across England and Wales to reassess care packages to find the cheapest way to meet needs, and allow them to impose solutions that may be against the wishes of disabled people.

By rejecting legal arguments concerning the human rights and disability discrimination acts that favour Elaine’s appeal, the Supreme Court will shatter disabled people’s confidence in the ability of the legal system to protect their rights.

In part of the judgment, Elaine is characterised as being difficult and rigid in her approach to alternatives presented by the Royal Borough of Kensington and Chelsea such as a live-in volunteer or sheltered accommodation.

The irony is that if an application to the Independent Living Fund (ILF) in 2007 had succeeded Elaine would have been given the resources to fund the overnight care she needs. This case would never have come to court if Elaine’s council had done its job properly.

While the Supreme Court gives a lot of weight to statements presented by her council that other disabled people who are not incontinent accept the use of pads or sheets to avoid the need for overnight care, they do not question the voracity of some of the council’s evidence, particularly where inaccurate information has been presented.

In the court of appeal judgment, it states in paragraph 13: ‘As it emerged, however, the ILF application failed, inter alia because Ms McDonald, on turning 65, ceased to be eligible for funding from it.’ Yet an independent review of the Independent Living Fund published in January 2007 by the respected academics Melanie Henwood and Bob Hudson confirms on page 5 that applicants had to ‘Be at least 16 years of age and under 66’. In fact at the time when Elaine left hospital in March 2007 when an application to the ILF had a strict deadline of three months she was 63, about to turn 64.

It saddens us that English and Welsh law that is so detrimental to the interests of disabled people is developed by expert legal minds that do not have a full grasp of the detailed issues before them.