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Journal of Adult Protection, The

developments

Human Rights Act 1998: developments

Brammer, Alison

This column outlines some recent caselaw decisions affecting vulnerable adults, where rights and freedoms within the Human Rights Act 1998 have been argued.

R (Beeson) v Dorset County Council. CA 18 December 2002

This case began as a judicial review of a local authority decision that an individual had deprived himself of his property before entering residential care. It was decided initially that the local authority complaints procedure panel, which comprised two councillors and one independent member, was not sufficiently independent and impartial for the purposes of article 6 (1) of the European Convention on Human Rights.

On appeal, the Court of Appeal stated that the real question was whether the addition of judicial review to the process satisfied the article 6 (1) standard. It found that if there was no substantive reason to question the integrity of the panel decision, whatever its appearance might suggest, the added safeguard of judicial review would usually satisfy the article 6 standard.

This principle is likely to apply across the range of complaints procedure panels, whether in relation to those established under the Children Act 1989 or the National Health Service and Community Care Act 1990. The argument advanced by the Court of Appeal is that in any case where there is a concern that the panel was not sufficiently independent or impartial, the fact that the decision can be reviewed by judicial review in the High Court is sufficient to provide that element of the article 6 requirement. Looked at overall this may be so. However, it pays insufficient regard to the ‘bringing rights home’ philosophy which underpins the Human Rights Act 1998. It is expensive and time consuming for a claimant to take a case to judicial review and this may prove to be a deterrent for some. The preferable course would have been to ensure absolute and transparent independence and impartiality at the panel stage by extending the requirement for independence to at least two members.

R (on the application of Bernard) v London Borough ofEnfield. High Court October 2002

In this significant case the court found that human rights under articfes 3 and 8 were viofated by faifure to provide adequate community care services. Damages were awarded.

The facts of the case are quite complex and revolve around the housing needs of a family comprising husband and wife and six children aged between three and 20. The wife, aged 48, suffered right-side paralysis following a stroke, was largely immobile, reliant on an electric wheelchair, doubly incontinent and diabetic. Her husband cared for her and the children.

The family had lived in a house adapted by Enfield, but were forced to sell due to mortgage arrears. They held the tenancy of a second house for 15 months (not adapted). At the end of that tenancy they moved to house three provided by Enfield’s housing department. They then moved to house four, which had no adaptations and was provided as temporary accommodation, the family having been considered intentionally homeless in june 2000.

In September 2000 social services assessed the needs of claimants and their family. The assessment concluded that house four was totally unsuitable for the following reasons:

* the wife was unable to use her wheelchair in the house

* the only accessible toilet was in a lean-to in the back garden, down the back stairs, so she was unable to get there without her husband’s help

* the bath was also in the lean-to

* she was forced to live in the lounge, where the husband and the two youngest children also slept

* the front door opened directly into the lounge

* there were steps to the front door so the wife was unable to leave the house by herself.

Enfield accepted it needed to provide her with residential accommodation to meet her needs under section 21 of the National Assistance Act 1948 and the current house could not be suitably adapted.

No action was taken to meet the family’s needs. The council sought to evict the family in February 2002 but the family brought an action in judicial review with a human rights claim. In March 2002 the court ordered Enfield to find and adapt a suitable property within six months and the human rights claim was adjourned for that period.

The family actually moved into suitably adapted accommodation the day before the hearing of their claim for damages under the Human Rights Act, some two years after the initial assessment.

Points arising from the judgement include the following:

* Enfield confused obligations under the Housing Act for homelessness and their duty to provide residential accommodation under the National Assistance Act 1948. Intentional homelessness has no bearing on the section 21 duty, which applies where an individual is in need of care and attention which cannot be met other than through provision of accommodation

* application of the Human Rights Act means that community care functions must be exercised compatibly with Convention rights

* in this case it was alleged that Enfield breached article 3 and 8 in respect of the wife, and article 8 in respect of her husband

* it is established that by article 3, public authorities must not inflict inhuman or degrading treatment; also that authorities should take steps to protect individuals from being so exposed (Z and others v UK, 2001)

* the court noted that the family had lived in deplorable conditions, but the circumstances of the case did not meet the threshold of mistreatment required – ie minimum level of severity. It was relevant that mistreatment had arisen by ‘corporate neglect’ rather than deliberate mistreatment. Nevertheless, the court described the article 3 arguments as ‘finely balanced’

* the claim that Enfield had acted incompatibly with article 8 – right to respect for private and family life – was successful

* private life includes a person’s physical and psychological integrity (Botta v Italy, 1998)

* the court cited clayton and Tomlinson, Law and Human Rights: The fundamental element of family life is the right to live together so that family relations can develop naturally and that members of a family can enjoy one another’s company.’ The court said that the obligation is to do more than protect individuals from arbitrary interference with article 8 rights – it can require a positive act by state authorities, noting ‘those entitled to care under section 21 are a particularly vulnerable group. Positive measures have to be taken (by way of community care facilities) to enable them to enjoy, so far as possible, a normal private and family life’

* Enfield’s failure to act on the September 2000 assessments showed a singular lack of respect for the claimants’ private and family life. It condemned the claimants to living conditions which made it virtually impossible for them to have any meaningful private or family life for the purposes of article 8

* when applying article 8 the court will ask the following question: is there an interference? Yes, if provision would secure a person’s physical and psychological integrity and development of personality in relations with others. Yes, if provision would allow family relations to develop naturally and allow family members to enjoy one another’s company. Yes, if there is a direct link between the services that could be provided and the user’s private/family life

* it must consider whether the interference is justified. To be justified any interference must be in accordance with the law, and necessary – in pursuit of the protection of rights and freedoms of others, economic wellbeing of the country, or protection of health and morals. Any interference must be proportionate – ie no greater than necessary to achieve the aim pursued

* it is permissible to take into account how public resources should be spent but an authority must have a system of prioritising community care resources if a failure can ever be justified. The authority has to balance the demand of each individual service user against general demand on its resources.

This is clearly an extreme case highlighting apparent bad practice. Not every case in which a service user is dissatisfied with the outcome of a community care assessment will be able to mount a human rights claim. Whether there has been a breach of human rights will always depend on the circumstances of the case and not all failures will breach equally. The case is, however, a significant application of the human rights philosophy and demonstrates the courts’ willingness to enforce the duty of public authorities to act in compliance with the articles of the European Convention.

The following extract from the judgement summarises the human rights issues in this case:

‘Following the assessments in September 2000, Enfidd was under an obligation not merely to refrain from unwarranted interference in the claimants’family life, but also to take positive steps, including the provision of suitably adapted accommodation, to enable the claimants and their children to lead as normal a life as possible, bearing in mind the second claimant’s severe disabilities. Suitably adapted accommodation would not merely have facilitated the normal incidents of family life, for example she would have been able to move around her home to some extent and would have been able to play some part in looking after their children. It would also have secured her “physical and psychological integrity”. She would no longer have been housebound, confined to a shower chair for most of the day, lacking privacy in the most undignified of circumstances, but would have been able to operate again as part of her family and as a person in her own right, rather than being a burden, wholly dependent upon the rest of her family. In short it would have restored her dignity as a human being.’

R (on the application of Dudley, Whitbread and Others) v East Sussex County Council [2003] EWHC 1093 Admin

There have been a number of cases where residents have sought to challenge local authority decisions to close care homes. The High Court in this case found that closing a home is not necessarily incompatible with residents’ rights under article 8, a person’s right to respect for his home. Any interference with residents’ rights must be proportionate and the court stressed the need for the process leading to closure to be managed properly, including a consultation exercise. In times where authorities are having to deal with scarce resources and closing homes may result in cost savings the court showed a reluctance to interfere with the authorities’ decision.

The court rejected evidence that care home closures and associated transfer of residents lead to increased mortality, describing the statistical evidence as ‘massively overstated.’ It also rejected arguments under article 3, which provides that no one shall be subject to inhuman or degrading treatment. The court stated that closure of the centre and subsequent transfer of residents did not come close to the threshold required for treatment to be inhuman or degrading.

Mendoza v Ghaidan [2002] EWCA Civ 1533. Article 14

Of general note, this case confirms that although sexuality is not specifically listed in article 14 as a ground of discrimination, such discrimination on the grounds of a person’s sexuality does fall within the article.

The issue in this case was whether Mr Mendoza was entitled to succeed to a tenancy under the Rent Act – ie was he entitled to carry on the tenancy of the property in which he lived with his same-sex partner, when his partner died, the tenancy having been in his partner’s name? The relevant paragraph in the regulations refers to a surviving spouse or ‘a person who was living with the tenant as his or her wife or husband’. Applying the duty to read legislation compatibly with the Convention, the judge interpreted ‘as his or her wife or husband’ to mean ‘as if they were his or her wife or husband’, thus including homosexual couples. he commented that issues of discrimination have ‘high constitutional importance’.

There is a clear stream of caselaw developing since the introduction of the Human Rights Act 1998, in which articles of the European Convention of Human Rights are being argued. Such development will inevitably lead to piecemeal reform of the law as it is impossible to predict which areas of law individuals will litigate. More consistent development of good practice in line with the principles of the Human Rights Act 1998 should be secured via the duty of public authorities to act in a way which is compatible with the European Convention of Human Rights.

In other words, in carrying out its functions every local authority or health authority (as examples of public authorities) should ensure that the human rights of service users are respected. This was clearly not the case in the Enfield decision referred to above. It is of interest to note therefore that the parliamentary joint committee on human rights has reported that there is a compelling case for establishing a human rights commission in England and Wales. It suggests that respect for human rights is not at the heart of public authorities’ policies and practices, and that bodies such as local councils and hospitals act defensively in aiming to avoid litigation but no more.

* see The case for a Human Rights Commission published by the Joint Committee on Human Rights on 19 March 2003. Available from www.publications.parliament.uk

Copyright Pavilion Publishing (Brighton) Ltd. Dec 2003

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