Community care and independent living Update for DDPO Legal Network Kate Whittaker Solicitor, Scott-Moncrieff & Associates Ltd. Trustee, Disability Sheffield Centre for Independent Living Wednesday 1st October 2014 at SCOPE, 6 Market Road, London N7 9PW
Community care and independent living • Case law update • Worcestershire Maximum Expenditure Policy case - PSED • Independent Living Fund JR No.1 – PSED & Article 19 UNCRPD • Elaine McDonald Strasbourg judgment – Article 8 ECHR • Bedroom tax appeal - Discrimination • On the ground • Key principles going forward
Worcestershire Max Expenditure Policy caseR (D) v Worcestershire County Council  EWHC 2490 • Challenge to lawfulness of local authority decision in Nov 2012 to adopt a policy under which the maximum weekly expenditure on care in the community for an adult under 65 would be ‘no more than the net weekly cost... of a care home placement that could be commissioned to meet the individual’s assessed eligible needs’ • Discretion to depart from the policy in exceptional circumstances • LA had effectively already been applying the policy since 2008
Worcs. Max Expenditure Policy case • Claimant had complex needs including learning disability, ADHD and epilepsy; due to turn 18 in 2014 • Mother was primary carer at time, concerned to ensure that he had appropriate care as he moved into adulthood, anticipated to need 24-hour support • Procedural challenge to the way in which the council acted in deciding to adopt the policy • NOT challenging how the policy would apply to the claimant – hadn’t got there yet
Worcs. Max Expenditure Policy case Arguments:- • Defective consultation: Claimant argued that the consultation failed to identify the consequences for those affected, so they could not respond meaningfully. Claimant believed that some half of those within scope of policy would potentially be forced into residential care. Rejected: Court’s decision indicates low threshold of giving consultees enough info to enable them to respond meaningfully. Judge disagreed that so many people would in fact be forced into residential care, but accepted as ‘obvious’ that some would.
Worcs. Max Expenditure Policy case • Public sector equality duty (s149 Equality Act): In the Council’s overall process of making the decision, it had failed to have due regard to the factors set out in the Act, including the need to:- • eliminate discrimination (where discrim includes the failure to take positive steps to remove disadvantages to disabled people), and • advance equality of opportunity between disabled and non-disabled people, which involves having due regard to the need to: • remove or minimise disadvantages suffered by disabled people • take steps to meet disabled people’s needs • encourage participation of disabled people in public life or any other activity in which their participation is low
Worcs. Max Expenditure Policy case • PSED: Specifically Claimant argued failure to give due regard by: • failing to gather/consider adequate information eg no data in its Equality Impact Assessment about how many people would be affected and how severely; • failing to properly understand the extent of the detriment to disabled people and therefore how it might be mitigated; • failing to consider where else from its budget savings could be made instead. • Claimant not arguing that have to achieve equality of opportunity etc. – PSED just requires evidence of having carefully considered the relevant info about the policy and its impact, with the specific PSED factors in mind
Worcs. Max Expenditure Policy case • PSED – rejected: • Court was ‘quite sure’ that Council had more than adequate info to be able to give due regard to the relevant factors; • no need for data about impact; accepted that Council had considered potential negative impact sufficiently because that impact was ‘obvious’; (but despite conclusion that no data needed, Court effectively held that the Claimant was wrong about the approximate number of people who may be forced into residential care...)
Independent Living Fund JR No. 1R (Bracking & others) v Secretary of State for Work & Pensions  EWCA Civ 1345 – Court of Appeal • Challenge to lawfulness of decision in Dec 2012 by Minister for Disabled People to close the ILF in April 2015 • ILF system set up in 1988, part of DWP, national approach alongside local authority social services provision, to provide additional funding for people with highest support needs and greatest risks of being unable to live/work independently • Decision directly affected some 18,000 severely disabled people
Independent Living Fund JR No. 1 • Recognition at time ILF set up that LAs focus on meeting basic needs, so disabled people tending to be warehoused for economy (short-sighted though that may be) • ILF system pioneered use of direct payments – choice and control • However, despite availability of direct payments from LAs, ILF users concerned that problems with inadequate LA resourcing remain and getting worse – until sorted out, ILF system arguably needed as much or more than in 1988 to avoid retrogression in independent living • Fear of being unable to afford to live in the community or participate in work and everyday activities on an equal footing with other people
Independent Living Fund JR No. 1 None of that directly under challenge. Arguments: • Defective consultation – unsuccessful • Again: low threshold of giving consultees enough info to enable them to respond meaningfully • NB consultation is only one of the ways in which info can be gathered to contribute towards an eventual decision
Independent Living Fund JR No. 1 • Public sector equality duty – successful: Court held: • Insufficient evidence that the Minister properly appreciated the impact of the proposals; • Not enough, for a decision of this magnitude, that Minister was told in general terms of concerns that ILF users would face reductions or alterations in their care packages and that their ability to lead full and independent lives would be undermined; • Needed adequate information properly to assess the practical effect of the proposals on the particular needs of disabled people and their ability to live independently – ‘an essential foundation’ for discharge of the PSED by the Minister.
Independent Living Fund JR No. 1 • United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) Article 19 – the right to independent living – successful: • Art 19: equal right of all disabled people to live in the community, with choices equal to others, including: • opportunity to choose their place of residence and where and with whom they live on an equal basis with others, not obliged to live in a particular living arrangement; • access to a range of support services to support living and inclusion in the community, and prevent isolation or segregation from the community; • community services and facilities for the general population are available on an equal basis for disabled people and are responsive to their needs.
Independent Living Fund JR No. 1 • Article 19 UNCRPD: • States which are signatories to the Convention must take appropriate and effective measures to facilitate and progressively realise the Convention rights • UNCRPD has been ratified by the UK Government, so this requirement of progressive realisation applies as an international legal obligation • Does not apply directly in UK law [unlike UN Convention on Human Rights which has been incorporated into domestic law by the Human Rights Act 1998] • But Court confirmed that UNCRPD ought to inform how the PSED should be applied to disabled people • ‘...no evidence that any of these considerations were in the mind of the Minister’
Elaine McDonald Strasbourg case – Art 8 ECHRMcDonald v UK App No 4241/12, 20/5/2014;  ECHR 492 • Former ballerina challenged local authority’s withdrawal of support for going to the toilet at night and provision of pads instead • Advised of change of care plan by letter – no proper assessment; corrected by time came to court in UK • Ms McDonald argued breach of Art. 8 (right to a private and family life, including physical and psychological integrity), both in terms of procedure and the on-going failure to provide services • UK courts had found the initial withdrawal to be unlawful because of lack of proper assessment, but held no breach of Article 8: provision of pads had ‘respected [Ms McD’s] human dignity and autonomy’ • Even if there had been a breach of Art. 8, it was justified because: ‘necessary... in the interests of... the economic well-being of the country
Elaine McDonald Strasbourg case – Art 8 ECHR Article 8 is a qualified right – unlike, say, the right to life – can be justified under certain circumstances: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Elaine McDonald Strasbourg case – Art 8 ECHR European Court of Human Rights (ECtHR) judgment: • Complaint did fall within scope of Article 8, not least because of impact on her human dignity • First finding by ECtHR of a breach of Article 8 in the context of social care • But the breach was for withdrawal of night-time care – a negative ‘interference’ with her right to respect for private life – rather than failure to positively respect her right by providing the service • So it was only unlawful for the period before a proper assessment was done to change the care plan, because during that time the interference was not ‘in accordance with the law’ so could not be justified under 8(2) • Awarded damages of €1000 by way of ‘just satisfaction’ and her costs
Elaine McDonald Strasbourg case – Art 8 ECHR European Court of Human Rights (ECtHR) judgment: • Once a lawful assessment had been carried out the interference was justified and non disproportionate, even having regard to the impact on Ms McDonald’s dignity – because of the ‘margin of appreciation’ to be afforded to the national authorities in matters of resources
Elaine McDonald Strasbourg case – Art 8 ECHR A win or a lose? • Fundamental disconnect between the rhetoric of dignity which the Ect HR is increasingly willing to expound, and the wide ‘margin of appreciation’ given to States • But still significant in finding breach of Art 8 for failing to follow lawful process – arguably follows that there is now a human right across Europe to be provided with the level of care that domestic law requires, regardless of austerity.
Bedroom tax case – Discrimination and PSEDR (MA) v Sec of State for Work & Pensions  EWCA Civ 13 • Challenge to change to the Housing Benefit Regulations 2006 which capped HB by reducing the eligible rent in cases where more bedrooms than permitted. • Challenge based on the impact of the measure on disabled people who may need an extra bedroom for their carer Arguments: • PSED • Discrimination contrary to Article 14 ECHR, combined with Article 1 of 1st Protocol to ECHR (‘A1P1’) – right to free enjoyment of possessions
Bedroom tax case – Discrimination and PSED Court of Appeal judgment: • PSED – rejected: held that the long history of the evolution of the policy demonstrated SoS had well understood impact and had had due regard. (Typical of recent approach of courts to PSED challenges, generally not upholding them vs major government decisions or policies) • Discrimination – rejected: held that the 2006 Regs plainly discriminated against disabled people who need an extra bedroom compared with non-disabled people who don’t, but justified. Test for justification, when property rights in issue, is v low threshold that justification must simply be more than ‘manifestly without reasonable foundation’. In this case the scheme had been approved by Parliament – case law from ECtHR suggests should be significant deference to the democratic will
On the ground • ADASS budget survey 2014: www.adass.org.uk/adass-budget-survey-2014/ • How councils are targeting savings from adult social care: www.communitycare.co.uk/2014/04/09/10-ways-councils-targeting-savings-adult-social-care-2014-15/ • The Other Care Crisis report: www.scope.org.uk/About-Us/Research-and-Policy/Publication-directory/The-other-care-crisis • Just Fair report on (non-)compliance with international obligations to disabled people, including Art 19 UNCRPD: just-fair.co.uk/uploads/Dignity_Opportunity_for_All_-_Full_report.pdf • Post-Winterbourne View transformation programme:www.theguardian.com/society/2014/may/25/winterbourne-view-transfer-plan-branded-abject-failure-by-minister
Key principles going forward • Duty to meet eligible needs, not just an allocation • Single eligibility threshold in Care Act: new Eligibility Regulations due out on 13 October 2014 • Public sector equality duty – applies in both individual and big policy context (but limited to process...)
Key principles going forward • Article 19 UNCRPD informs: • how the Human Rights Act is to be read when applying it in individual cases by public bodies • how UK Government applies PSED in all actions • Principle of non-retrogression – international obligation regardless of austerity: Nature of the obligation set out by UN Committee on Economic, Social & Cultural Rights: States must:- • “take steps… by all appropriate means… with a view to achieving progressively the full realisation of the rights” • “as expeditiously and effectively as possible” • “any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources” (www.refworld.org/docid/4538838e10.html)
ILF JR No.2 • Hearing in the High Court 22 and 23 October 2014 • PSED, informed by Article 19 UNCRPD obligations .... watch this space