Challenging Community Care Decisions after McDonald and KM
After a gap of over a decade since the decision of the House of Lords in Barry, the Supreme Court has now considered the adult community care scheme twice in recent years. First, in McDonald, the Supreme Court held (Lady Hale dissenting) that there was nothing unlawful about Kensington and Chelsea’s decision to withdraw night-time care from Mrs Elaine McDonald and instead provide her with incontinence pads, even though she was not in fact incontinent. Second, in KM, the Supreme Court held unanimously that the funding allocation to a severely disabled young man by Cambridgeshire was not irrational and unlawful.
On first consideration the decisions in McDonald and KM seem to provide little comfort for community care lawyers representing those in need of care and support. In both cases, the service provision decisions made by local authorities withstood the scrutiny of the highest Court. However in this paper we argue that on closer consideration these decisions leave significant space for future community care challenges to be brought and that KM in particular has the potential to assist in such challenges.
Author: Stephen Broach and Stephen Cragg QC
Publication date: October 15 2012