E QUIPO DE PROPULSIÓN

The Human Rights Act 1998 now provide new terrain for persons with disabilities to challenge their treatment by local authorities, not only with regard to the assessment process that lies at the heart of the provision of welfare services but also with regard to the ways in which their lives have been affected by changes in the way welfare services are provided to meet their specific needs.

2.3.3.1 Section 6 HRA and the Notion of Fair Access

With regard to access to services, the provisions of section 6 of the HRA may provide a finely tuned vehicle to ensure that the assessment process operates to respect the human rights of persons with disabilities, especially with regard to the level of consultation that may be carried out by the local authority with the individual with a disability to identify his or her needs. The assessment process must be an interactive one and the local authority will have to identify carefully the specific needs of the person with a disability as failure to do so may amount to a breach of its statutory duty. Adjudicatory bodies including courts must obviously retain jurisdiction to review how the assessment of needs is conducted and should not automatically defer to the judgment of the local authority. Otherwise the protection afforded

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by section 6 HRA will have little effect. In this respect, it was established in Kirklees Metropolitan Borough Council ex parte Daykin⁴⁵⁸ that the court has an inherent jurisdiction to carry out an assessment of the needs of a claimant where there has been a failure on the part of the local authority to discharge its statutory duty to assess. However, such a jurisdiction does not exist where there has been an assessment or reassessment by the local authority and the courts will not substitute their assessment to that of the local authority.

2.3.3.2 The Article 8 ECHR

The implications for persons with disabilities of the right to respect for one's private and family life, one's home and correspondence contained in Article 8 ECHR have already received some judicial scrutiny and are likely to continue to impact on the ability of local authorities to meet the needs of persons with disabilities. However, within the context of the provision of welfare services, the import of Article 8 to the promotion of equality for persons with disabilities was recently explored by the Supreme Court in R (Elaine McDonald) v Kensington & Chelsea RBC ⁴⁵⁹

In this case, the apellant Ms McDonald suffered from a condition which required her to access a toilet three or more times a night. Owing to her physical frailty (caused as a result of a stroke), such access had resulted in a number of falls some of which had necessitated her hospitalization. The respondent local authority carried out a care plan review which concluded that Ms McDonald’s night-time needs could be met appropriately by the provision of incontinence pads. Ms McDonald refused to use such pads on the basis that it offended against her dignity. On appeal from the Court of Appeal, one of the issues before the Supreme Court was whether the respondents’ decision to provide pads interfere with the appellant’s article 8 rights and, if so, whether such interference was justified and proportionate. The majority of the Supreme Court literally rubber-stamped the decision of the Court of Appeal dismissing Mrs. McDonald’s appeal and concluded as follows with regard to the relationship between the provisions of Article 8 ECHR and the provision of welfare services. First, their Lordships affirmed that Article 8 in principle can impose a positive

458 [1998] 1 CCLR 512

459 [2010] EWCA Civ 110; [2011] UKSC 33(UKSC2011/0005).

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obligation on a state to take measures to provide home-based community care to a person with a disability but that such an obligation, however, would arise only where the applicant can establish both (i) “a direct and immediate link between the measures sought by an applicant and the latter’s private life”⁴⁶⁰ paras 34 and 35 and (ii) “a special link between the situation complained of and the particular needs of [the applicant’s] private life.”⁴⁶¹

There is now judicial authority for the proposition that the requirement of direct and immediate link will be established and thus Article 8 will be infringed where a local authority fails, unjustifiably, to provide a person with a disability with the support necessary to allow him or her to participate fully in the life of their family or where such failure undermines the dignity of the person with a disability.⁴⁶² In awarding substantial damages to the Bernards in respect of the infringement of their rights to a private and family life under Section 8 HRA, Sullivan J stated in R (Bernard) v Enfield London Borough Council⁴⁶³ that the provision of Suitably adapted accommodation to the claimant’s family by the local authority would not merely have facilitated the normal incidence of the claimant’s family life but would also have secured her 'physical and psychological integrity'. In R v East Sussex CC ex parte A and B,⁴⁶⁴ Munby J identified (human dignity) as one of two particularly important concepts embraced by the notion of physical and psychological integrity. The second important concept was the right of persons with disabilities to participate in the life of their community and to have access to essential economic and social activities and to an appropriate range of recreational and cultural activities.

Second, the Supreme Court emphasised that even where such a direct and immediate link is found to exist, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole and to the wide margin of appreciation enjoyed by member States with regard to the prioritisation or allocation of

460 Botta v Italy (1998) 26 EHRR 241.

461 Sentges v The Netherlands (2003) 7 CCLR 400, 405.

462 R (Bernard) v Enfield LBC [2002] EWHC (Admin) 2282.

463 Ibid.

464 High Court (Admin) CO/4843/2001, 18 February 2003.

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limited State resources.⁴⁶⁵ Their Lordships therefore agreed with the Court of Appeal’s finding that the local authority’s actions had taken in to account the dignity and autonomy of Mrs McDonald while striking the delicate balance between her safety, independence and privacy and the effect on the local authority’s resources of the continuing liability of providing night-time care for her. Their Lordships concluded that the actions of the local authority with regard to the appellant’s need assessment was justified as a proportionate means of achieving a legitimate aim, namely the equitable allocation of limited care resources.

Third, the Supreme Court expressly approved the position of Lord Woolf in Anufrijeva v.

Southwark London Borough Council,⁴⁶⁶ that the threshold of Article 8 is a high one, requiring that the hardship caused to the claimant by the failure to provide welfare support to meet the disability related needs should be comparable to that under Article 3 ECHR. In this respect, the learned Judge concluded that such a threshold would easily be attained where the welfare of children is at stake and that, in such instances, article 8 may require the provision of welfare support in a manner which requires family life to continue. ⁴⁶⁷ Another factor that would have to be taken into account in considering whether the threshold of article 8 has been reached is the extent of the culpability of the failure by the local authority to act and to the severity of the consequence of such a failure. In this respect, the Supreme Court endorsed the culpability test of Lord Wolf in Anufrijeva⁴⁶⁸ when it concluded that the local authority could not be held liable because the breach of statutory duty was born of error rather than a lack of respect for Ms McDonald’s Article 8 rights and the interference was not sufficiently serious.

It is humbly submitted that the Supreme Court decision in the Elaine McDonald Case deviates from the very notion of the right to equality for persons with disabilities. First, the decision appears to ignore the fact that the test of proportionality encapsulated in the

465 Zehnalova and Zehnal v the Czech Republic (2002) Application No.38621/97. Also, O’Reilley v Ireland (28 February 2002) Application No 54725/00; Pentiacova v Moldova (Application No 14462/03 (unreported)

466[2003] EWCA Civ 1406, [2004] QB 1124

467R (J) v. Enfield London Borough Council [2002] EWHC 735 (Admin).

468[2003] EWCA Civ 1406, [2004] QB 1124

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Statutory duty to promote disability equality is a contextual one, requiring a careful balance of the policy of the local authority against the purpose sought to be achieved by the discriminating policy, and the extent to which the rights of a person with a disability in need of welfare support has been impaired. A key consideration in determining the extent to which a policy or practice impairs the rights of persons with disabilities will be the extent to which their dignity is upheld and respected. What must be remembered is the fact that, at a deep level the ideal of human rights encapsulated in the duty to promote equality is not merely about the intrinsic worth of each human being and their dignity; it is also about their equal inherent self-worth.⁴⁶⁹

Second, the decision will simply reinforce the current system of rationalization by compounding the isolation of persons with disabilities from the rest of the community and reducing their range of choice with regard to the services to meet their needs. Persons with disabilities are already being forced by the rationalisation system of Local Authorities to accept wholly inadequate care support packages under the threat of the support being terminated all together. There is no gainsaying that, for individuals such as Elaine McDonald, the choice between accepting care support which infringes their sense of self dignity or being refused totally any form of support is problematic. The idea that persons with disabilities should have minimal expectations of their needs being met appears to undermine the conceptual relationship between the provision of welfare services to meet the needs of persons with disabilities and the ideals of non-discrimination and equality which constitutes the very basis of the duty to promote equality for this group of citizens.

469 G. Quinn, The European Social Charter supra no. 421.

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Chapter Five: Mainstreaming, Partnership and the Promotion of Disability Equality

Introduction

Mainstreaming has been conceptualised as a social justice approach to disability, based on the social model.⁴⁷⁰ It gives effect to the right of equal treatment and non-discrimination by enhancing procedural rights to participation or consideration in the policy process. To the extent that it is a strategy for making the concerns and experiences of marginalised groups an integral dimension of the design, implementation, monitoring and evaluation of policies and programmes, mainstreaming appears to encapsulate a substantive approach to equality and non-discrimination.⁴⁷¹ Its group dimension ensures that the focus is on the structures of an organisation that are likely to perpetuate group disadvantage rather than on individual acts of discrimination.⁴⁷² Mainstreaming is therefore a complex process of equality management which does not only focus on delivering measurable fixed outcomes butt also on the quality of the decision-making process.⁴⁷³ This chapter is concerned with the promotion of disability equality by Southwark council through mainstreaming and partnership within the framework of the Disability Equality Duty.⁴⁷⁴