Major disability rights judgment to be handed down by ECtHR

15.05.14 |

The European Court of Human Rights (ECtHR) has confirmed that judgment in McDonald v UK will be handed down next Tuesday, 20 May 2014. This case is likely to be the leading case on the extent to which the right to respect for private and family life in Article 8 ECHR requires the state to provide services to secure disabled people's human dignity.

Mrs McDonald was represented in both the domestic proceedings and the ECtHR by Steve Cragg QC and Steve Broach, instructed by the Disability Law Service. Ian Wise QC was instructed to intervene in the Supreme Court by Age UK.

The case concerns the decision by the Royal Borough of Kensington and Chelsea to withdraw funding for nighttime care from Mrs McDonald and instead provide her with incontinence pads. Mrs McDonald's objection to this stemmed from the fact that she was not functionally incontinent but merely required assistance to use the toilet or commode at night as a result of her physical frailty. The decision was justified on the basis of the significant cost saving that would be made as well as the suggested benefits to Mrs McDonald's safety.

Although both the Court of Appeal and Supreme Court held that the initial decision by Kensington and Chelsea to withdraw nighttime care was unlawful as there had been no re-assessment of Mrs McDonald's needs, the domestic courts wholly rejected Mrs McDonald's claim that the decision breached her rights protected by Article 8 ECHR, as informed by the new UN Convention on the Rights of Persons with Disabilities. This is the issue which will be decided by the ECtHR next Tuesday.

The ECtHR has not to date accepted that any complaint by a disabled person under Article 8 ECHR in relation to the provision of services should be held admissible. As such if Mrs McDonald's complaint is held admissible it is likely to become the leading judgment in this area.

A link to the ECtHR judgment will be provided from the Doughty Street Chambers website after 10am on Tuesday 20 May 2014. The Supreme Court judgment ([2011] UKSC 33), which includes a summary of the background facts of Mrs McDonald's case, is available here. A summary of the complaint before the ECtHR is available here (see page 2).


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