Attacks on disabled people's rights

Disabled people protest against cuts, photo S Civi (Click to enlarge)

A recent Observer exposé of the implications of Con-Dem cuts on one London borough described a nightmare scenario.

"Streetlights will be switched off at night ... Home repairs for council tenants will be refused. Libraries and children's centres will close ... Fees for swimming and sports will increase. And luncheon clubs for pensioners, playgroups for children, youth clubs and breakfast clubs will all be cancelled."

Age UK released figures showing that even a 7% cut in adult social care would mean 250,000 fewer people receiving care in their homes.

Here a disabled socialist gives an example of the conditions already faced by those in need of support.

A RECENT Court of Appeal judgement gives the green light to councils to reassess all disabled and older people's existing care packages, and in some circumstances compel service users to, against their will, adopt approaches to personal care that will reduce their need to use personal assistants or care workers.

The details of the case also demonstrate the negative impact the underfunding of social care by successive Tory and New Labour governments is having on the lives of disabled people and their families.

The case concerns the social care needs and rights of Elaine McDonald, a 67 year old who lives in the Tory controlled borough of Kensington and Chelsea.

She was a principal ballerina at the Scottish Ballet in the 1970s and 1980s and an artistic director at the Northern Ballet Theatre. The Thatcher government awarded her an OBE in 1983.

In 1999 Elaine had a stroke, after which she had to use a wheelchair when outside her home. Following the stroke, her partner Donald cared for her at home.

In 2006 Elaine fell at night and broke her hip. After she returned home, she fell two more times and on each occasion had to be hospitalised.

Also in 2006 the strain of caring became too much for her partner and he was hospitalised. After this, he was rehoused and has lived separately from Elaine ever since.

But he has had to help Elaine for three nights a week during her court battle for a judicial review of her council's decision to withdraw services.

The conflict is centred on a dispute about whether Elaine should be allowed to continue using care workers to help her with a commode during the night, or whether this support can be withdrawn by Kensington and Chelsea council.

This would compel Elaine to either use an incontinence pad or special absorbent sheeting. Elaine believes the council's alternatives are unacceptable and an affront to her dignity because she is not incontinent, but simply needs to use a commode at night because of a bladder problem and needs help to avoid falling.

Following her third stay in hospital, Elaine's council gave her an interim care package. From March 2007 she received some support during the daytime and ten hours help at night, seven days a week.

But when an application to the national Independent Living Fund (ILF) that was designed to split the £703 cost of Elaine's package failed, the council decided through a reassessment that her need was for help with urination at night and not a specific need to use a commode, therefore pads or sheets would be an acceptable way of meeting this need.

In October 2008 Kensington and Chelsea 'offered' Elaine a care package of £375 a week for daytime support, and £75 a week to employ a care worker to help fit incontinence pads at bedtime.

During the subsequent court cases, the council 'compromised' and only withdrew three nights support pending a legal judgement.

Finance over needs

Disabled people protest against cuts, photo S Civi (Click to enlarge)

The refusal of Lord Justice Rix to grant a judicial review is largely rooted in the House of Lords Gloucestershire Judgement of 1997. This allows local authorities to consider their financial position when deciding what assessed needs they will meet.

In 1998 the disabled Labour peer Jack Ashley tried to introduce a law to overturn the Gloucestershire Judgement. But the Blair government refused to use its Commons majority to support him, aware that such a law would require the investment of many billions more in social services every year.

This failure then paved the way for a 1998 legal judgement that gave Kirklees council the right to consider cost when choosing between different ways of meeting a need - the precedent used to justify telling Elaine McDonald she has to use incontinence pads against her will.

One striking point made by Rix is that other disabled people in the Kensington and Chelsea area who are not incontinent have accepted the option of pads, sheets or convenes overnight, and that to support Elaine's use of care workers at night would be to give others the right to £22,000 extra support a year.

Elaine's lawyers tried and failed to successfully argue that the Disability Discrimination Act, Human Rights Act and UN Convention on the Rights of Persons with Disabilities support her right to make her own choices. What are seen as safeguards by many disabled activists will be mere paper tigers in the 'age of austerity'.

The disabled people's movement must now mobilise to defend Elaine McDonald's rights, linking up with anti-cuts campaigns in every area. A defeat for her is a defeat for all disabled people.

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In The Socialist 11 November 2010:

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