THE HUMAN RIGHTS ACT AND DISABLED PEOPLE
In this post, Anna Lawson, Maria Orchard, Beverley Clough, Luke Clements and Oliver Lewis of the University of Leeds discuss the positive developments that the Human Rights Act has facilitated for people with disabilities, and note the essential role of the Act in strengthening disability rights in the UK.
In this short paper, we will draw attention to a number of examples of disability-related Human Rights Act (HRA) 1998 cases which illustrate the valuable role the HRA has played in the strengthening of disabled people’s human rights in the UK.
Case law is not the only route through which the HRA has operated. Also significant is the work of the Joint Committee on Human Rights and the impact on campaigning and lobbying of the heightened profile which the HRA gives to human rights considerations. Detailed reflection on these issues, however, lies beyond the scope of this paper.
The focus, therefore, will be on examples of relevant cases – but it should be stressed that this will not be an exhaustive account of all disability-related HRA jurisprudence. The paper will be organised by reference to the different articles of the European Convention on Human Rights (ECHR) at issue.
The right to life, set out in Article 2 ECHR, has been influential in driving up the responsibilities of hospitals and care home providers to take steps to protect the lives of disabled people. In Rabone v Pennine Care NHS Trust, for example, the UK Supreme Court held that Article 2 had been breached when a hospital allowed a patient, known to be at risk of suicide, to return home for a week – during which she killed herself. This was so despite the fact that the patient was in hospital on a voluntary basis, and not compulsorily detained under the Mental Health Act 1983. Given the fact that the hospital knew that there was a ‘real and immediate’ risk to life, it should have taken more care to protect the patient.
Article 2 has had a transformative effect on inquests concerning disabled people. Where a Coroner rules that Article 2 is engaged, the scope of the inquest is widened to exploration as to how the deceased came by their death, not simply how they died. Article 2 inquests trigger 'Exceptional Case Funding' by the Legal Aid Agency, which pays for legal representation for bereaved families, increasing their access to justice. Over the last few years, many deaths of people with learning disabilities, autism and/or mental health issues – particularly those who have died in institutional settings – have had Article 2 compliant inquest, which has revealed failures in healthcare and social care and led to policy changes at NHS Trusts, local authorities and private providers.
Article 3 sets out a right to be free from inhuman and degrading treatment or punishment, and to be free from torture. A number of important cases decided by the European Court of Human Rights (ECtHR) have held that Article 3 has been breached because of the conditions in which a disabled person is held in prison or in police or psychiatric detention. These include cases against the UK, such as Price v UK, where a disabled woman was refused permission to take the battery charger for her wheelchair to prison with her; occupied a cell which was dangerously cold for her, with a bed she was unable to use; and had to rely on assistance from male staff in using the toilet. The ECtHR stressed that assessment of the minimum level of ill-treatment required to establish inhuman and degrading treatment depends on all the circumstances of the case, including any impairments of the victim and the physical and mental effects of the ill-treatment. Accordingly, although there was no deliberate intent to humiliate or debase Ms Price, there had been a breach of Article 3.
The ECtHR case law has proved extremely influential over UK law. An example of an English HRA case in which there was held to be a breach of Article 3 is ZH v Commissioner of the Police for the Metropolis. Here, the police failed to consult the carer of an autistic child (who was transfixed by a swimming pool) with the result that they followed their standard procedures for interacting with people causing a nuisance. The alarmed child then jumped into the pool from which he was forcibly removed, handcuffed and restrained in a police van. Concerns about the inconsistency of many restraint practices with Article 3 and other ECHR rights led the Equality and Human Rights Commission to publish guidance on the topic in 2019. In the same year, the Commission supported judicial review proceedings on behalf of Bethany, a 17-year-old girl with autism who had been kept in a seclusion room in St Andrew's Hospital, Northamptonshire, for two years. It was argued on her behalf that her rights under, inter alia, Article 3 ECHR had been breached. The case settled by way of damages and a public apology by the healthcare provider and public bodies.
Article 5 protects rights to liberty and security of the person and is concerned primarily with the right to be free from arbitrary detention. In the disability context, it was relied on by the UK Supreme Court in the leading case of P v Cheshire West and Chester Council and another; P and Q v Surrey County Council. In this case it was decided that three people with learning disabilities had been deprived of their liberty (within the meaning of Article 5) by virtue of living arrangements that placed them under continuous supervision and control and meant they were not free to leave should they attempt to do so. This case overturned previous practice, which did not treat these circumstances as deprivations of liberty. Its implications are far reaching, given that very many people with learning disabilities are in similar circumstances and that any deprivation of liberty attracts the protections of the Deprivation of Liberty Safeguards set out in the Mental Capacity Act 2005. These Safeguards provide a rigorous process by which health services have to prove that compulsory detention is the best solution for the individual concerned.
Article 6 ECHR concerns the right to a fair trial. There are many examples of disability-related HRA cases in which this right has been relied on. An early example is R v Isleworth Crown Court (ex parte King), in which it was held that, when questioning a litigant in person whose concentration and memory had been affected by a stroke, Article 6 required the judge to make adjustments including allowing additional time and not express impatience. Another example is AH v West London Mental Health Trust, in which Article 6 was relied on to support a ruling that a person detained under the Mental Health Act 1983 was entitled to have his case reviewed in a public hearing, rather than in private.
Article 8 ECHR sets out the rights to privacy, home and family life. An example of a disability-related HRA case in which it was held to have been breached is Bernard v Enfield LBC. Because the Council neglected to provide Mrs Bernard and her family with accessible accommodation for 20 months, she was denied the means of caring for her six children and required to endure repeated indignities associated with not being able to access the bathroom independently.
Another early example is the case of R v East Sussex CC (ex parte A and B), in which Article 8 was used to overturn a council’s blanket ban on the manual lifting of disabled people. A and B were two sisters with physical impairments. Without manual lifting it would have been impossible for them to take part in their valued leisure activities outside the home.
In the COVID-19 pandemic, several disabled people initiated judicial review proceedings arguing breaches of Article 8 ECHR. These included a challenge to NHS England whose guidance in the first wave was that hospitals could ban visitors. Pre-action correspondence raised Article 8 points and resulted in policy changes at national and Trust levels.
The Article 14 right to be free from discrimination in the enjoyment of other ECHR rights has provided the basis of a number of disability-related HRA cases in which government regulations have been successfully challenged.
The majority of these cases concern regulations on eligibility to disability-related benefits. In Mathieson v Secretary of State for Work and Pensions, for example, the Supreme Court held that Article 14 (in combination with Article 1 of Protocol 1, on peaceful enjoyment of possessions) had been breached by various provisions of the Social Security (Disability Living Allowance) Regulations 1991 which permitted the Secretary of State to withdraw Disability Living Allowance from children who had been in hospital for more than 84 days. Because of this case, the regulations were changed.
Regulations relating to Personal Independence Payments (PIP) (the successor to Disability Living Allowance) were challenged in RF v Secretary of State for Department of Work and Pensions. These prevented an award of the enhanced PIP mobility rate for a person who, ‘for reasons other than psychological distress’, was unable to follow the route of a familiar journey without assistance. The exclusion of people affected by psychological distress was quashed for breaching Article 14 (in combination with Article 1 of Protocol 1), because it was ‘blatantly discriminatory against those with mental health impairments’ and not capable of objective justification.
Regulations imposing a cap on housing benefits for an additional bedroom were challenged for their discriminatory impact on disabled people needing extra space (e.g. for carers or equipment) in Burnip v Birmingham City Council and R (on the application of Carmichael and Rourke) v Secretary of State for Work and Pensions. In both cases the HRA was used and it was held that the regulations contravened Article 14 ECHR, in connection with Article 1 of Protocol 1. The cap was therefore lifted in cases where an additional bedroom is needed for disability-related reasons.
The HRA has also been successfully used to challenge regulations under the Equality Act 2010 on the basis that they discriminate against certain disabled people (contrary to Article 14, in combination with the right to education under Article 2 of Protocol 1). In C & C v The Governing Body of a School, the issue was whether a regulation issued under the Equality Act 2010 contravened Article 14 ECHR. This regulation excluded people with a ‘tendency to physical abuse’ from establishing that they have a disability under the Equality Act 2010, thus preventing them from bringing claims for disability discrimination. It was held that the regulation did contravene Article 14 (in combination with Article 2 of Protocol 1) insofar as it prevented young autistic children – with a tendency to lash out at teachers or other children – from bringing cases against their school for disability discrimination. Because of this case, the regulation no longer has this effect in educational settings.
The provisions of Article 14 (in combination with other articles) have proved particularly valuable in addressing forms of oppressive discrimination which fall outside the more rigid provisions of the Equality Act 2010. In Hurley v Secretary of State for Work and Pensions, for example, an unpaid family carer was adversely impacted by benefit restrictions for which the court was unable to identify any legitimate justification. Carers are not a protected category under the Equality Act 2010, but there can be no public policy benefits for rendering immune from challenge laws that oppress such carers. In similar terms, in R (SH) v Norfolk CC, the High Court held unlawful local authority charging policies that had a disproportionate impact on the independent living opportunities of those with the most severe impairments.
Of particular importance in the field of social welfare law is the principle first articulated in the case of Thlimmenos v Greece: that unlawful discrimination can arise where, without objective and reasonable justification, states fail to ‘treat differently persons whose situations are significantly different’. Research at the University of Leeds, for example, identified as unlawful local authority policies that discriminate against disabled children with autism compared to children with other conditions (the ‘Autism Plus research’). Such policies have no rational justification in public policy terms and cause immense distress and humiliation to families. The Thlimmenos mechanism captures the illegality at the heart of offensive public policies of this kind. The ‘Autism Plus research’ also provides an example of the impact of human rights legislation that does not rely on court action. Subsequent to the research, individual local authorities were contacted and, in many cases, agreed to review their policies. An approach of this kind mirrors work undertaken by the Equality and Human Rights Commission in 2017 concerning policies adopted by Clinical Commissioning Groups placing a budgetary limit on support packages for severely disabled people – an approach that proved to be effective without the need for court involvement.
It is clear then that, by requiring UK courts to take account of ECHR developments, the HRA has proved an important and valuable tool in efforts to strengthen disability rights. Alongside examples of success, there are also of course examples of failure – of cases (not discussed here) where the HRA did not yield the result sought by the disabled claimant or their supporters.
The HRA, and the linkage it creates to the ECHR, is a mechanism that we strongly urge should be retained, with attention being given to areas in which more work is needed to secure the rights of disabled people (as set out in the ECHR and the Convention on the Rights of Persons with Disabilities) firmly in domestic law.
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