McDonald v RB Kensington & Chelsea

Summary: We draw your attention to this important community care case because, in it, their Lordships (with a powerful dissent from Baroness Hale) make it clear that the scope for challenges to funding decisions based upon Article 8 ECHR is likely to be very limited. Lord Brown JSC made a particular point of noting that a local authority can choose between appropriate care packages upon the basis of cost - see paragraph 22:

"I add only that, even if such an interference [with the Claimant's Article 8(1) ECHR rights] were established, it would be clearly justified under article 8(2)… on the grounds that it is necessary for the economic well-being of the respondents and the interests of their other service-users and is a proportionate response to the appellant's needs because it affords her the maximum protection from injury, greater privacy and independence, and results in a substantial costs saving."

Comment: We anticipate that it may well be the case that the approach adopted by the Supreme Court in this would feed through into any 'collateral' judicial review challenge that may be brought to a decision by a public authority not to put before the Court of Protection a particular option for consideration. It is one that has already been picked up by the Court of Appeal in rejecting an Article 8 ECHR challenge to a PCT's funding decision (R (Condliff) v North Staffordshire PCT [2011] EWCA Civ 910).

In other words, we anticipate that, so long as it remains the case that such a decision by a local authority is only challengeable by way of judicial review, it is likely that, so long as a local authority can demonstrate that the option(s) that is/are before the Court of Protection from its end can meet the needs of P, it is likely that the Administrative Court will be very slow to find its decision flawed on the basis that a more "Rolls-Royce" package would be better.