Commission supports Supreme Court home care case

04 April 2011

The Supreme Court will today be asked to decide whether Kensington and Chelsea Council was justified in withdrawing funding for a night carer from an elderly woman in a case supported by the Equality and Human Rights Commission.

Lawyers for Elaine McDonald, a former principal ballerina with the Scottish Ballet, will use community care, human rights and disability discrimination law to argue that her assessed need should be met.

Ms McDonald has a condition that requires her to use a toilet up to three or more times a night. The Council decided that her need was for "assistance at night to use the commode" which could only be met with the provision of an overnight carer. It was providing this service until it cut her care budget and withdrew continuous night care, concluding instead it could meet this need through the provision of incontinence pads.

John Wadham, Group Director, Legal, at the Commission, said:

"This case will set an important precedent. With an ageing population and budget pressures, care for older people is an issue that is escalating in scale.

"Older people deserve to be treated with dignity and respect. Providing them with the care they need should be a basic right; local authorities should not be able to override that fundamental human right."

Ms McDonald said:

"I feel like the Council is penalising me because I want to remain independent and do not want to become incontinent.

"On the nights when I don't have a carer I may have to lie in my own urine and faeces for 12 hours at a time, until my carer arrives the following morning. I do not even think that prisoners have to suffer such indignities."

The Commission is currently conducting a Homecare Inquiry which is examining the effectiveness of the care and support system provided to older people in their home.

The hearing is expected to last two days.


For more press information contact the Commission’s media office on 020 3117 0255, out of hours 07767 272 818.

For general enquiries please contact the Commission’s national helpline: England 0845 604 6610, Scotland 0845 604 5510 or Wales 0845 604 8810.

Notes to editors

Ms McDonald is being represented by the Disability Law Service.

The case is being heard under the Disability Discrimination Act 1995 (as this was the law in force when the Council's decision was made but has now been superseded by the Equality Act 2010) and the Human Rights Act 1998.

For more information on the Commission's inquiry go to our Home care Inquiry pages.

The Commission is a statutory body established under the Equality Act 2006, which took over the responsibilities of Commission for Racial Equality, Disability Rights Commission and Equal Opportunities Commission. It is the independent advocate for equality and human rights in Britain. It aims to reduce inequality, eliminate discrimination, strengthen good relations between people, and promote and protect human rights. The Commission enforces equality legislation on age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation, and encourages compliance with the Human Rights Act. It also gives advice and guidance to businesses, the voluntary and public sectors, and to individuals.