Elaine McDonald claimed that her local authority should fund a care package including assistance at night to use a commode.  A former ballerina, Ms McDonald was left disabled by a stroke in 1999.  The local authority successfully argued in the Supreme Court that it should not have to provide overnight care and that it was reasonable to expect her to use incontinence pads even though she was not incontinent.  Ms McDonald argued that having to use incontinence pads overnight was an “affront to her dignity”.

It was held that, in making care assessments, local authorities could properly take account of their own resources, and balance the needs of the individual against the needs of the many. 

The cost of care forms an important part of personal injury compensation awards.  In the past, Defendants have sought to argue that local authorities will “pick up the tab” for providing care.  This ruling brings into sharp focus what is taken into account in the assessment of care needs.  It reflects the divergence between local authority assessment and assessment by independent care experts, as commonly used in personal injury and clinical negligence claims.  It will now be harder for Defendants to claim that full care will necessarily be provided by local authorities.

Full case reference: R (on the application of Elaine McDonald) -v- Kensington & Chelsea Royal London Borough Council [2011] UKSC 33