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
(1) Worcestershire Maximum Expenditure Policy
case - PSED
(2) Independent Living Fund JR No.1 – PSED &
Article 19 UNCRPD
(3) Elaine McDonald Strasbourg judgment –
Article 8 ECHR
(4) Bedroom tax appeal - Discrimination
 On the ground
 Key principles going forward
Worcestershire Max Expenditure Policy case
R (D) v Worcestershire County Council [2013] 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 24hour 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:(1) 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
(2) 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
(2) 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
(2) 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. 1
R (Bracking & others) v Secretary of State for Work &
Pensions [2013] 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
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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:
(1) 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
(2) 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
(3) 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
(3) Article 19 UNCRPD:
 States which are signatories to the Convention must
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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 ECHR
McDonald v UK App No 4241/12, 20/5/2014; [2014] ECHR 492
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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 PSED
R (MA) v Sec of State for Work & Pensions [2014] 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:
1. PSED
2. 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:
1. 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)
2. 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
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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/2014/04/09/10ways-councils-targeting-savings-adult-social-care2014-15/
The Other Care Crisis report:
www.scope.org.uk/About-Us/Research-andPolicy/Publication-directory/The-other-care-crisis
Just Fair report on (non-)compliance with international
obligations to disabled people, including Art 19
UNCRPD: justfair.co.uk/uploads/Dignity_Opportunity_for_All__Full_report.pdf
Post-Winterbourne View transformation
programme:www.theguardian.com/society/2014/may/2
5/winterbourne-view-transfer-plan-branded-abjectfailure-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
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Article 19 UNCRPD informs:
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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