Article 6
R v (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.
Article 8
R (on the application of Bernard) v London Borough of Enfield.
High Court October 2002
In this significant case the court found that human rights were violated by failure to provide adequate community care services. Damages were awarded
The facts of the case are quite complex and revolve around housing needs of a family comprising husband and wife and 6 children aged between 3 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 house adapted by Enfield, but were forced to sell due to mortgage arrears. They held a tenancy of second house for 15 months (not adapted). At the end of that tenancy they moved to house 3 provided by Enfields housing dept. They moved to house 4 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 4 was totally unsuitable for the following reasons:
- The wife was unable to use wheelchair in house,
- Only accessible toilet was in a lean to in the back garden, down back stairs so she was unable to get there without husbands help
- Bath also in lean to
- She was forced to live in lounge, where husband and youngest 2 children also slept
- Front door opened directly into lounge
- There were steps to front door so the wife was unable to leave house by herself
Enfield accepted it needed to provide her with residential accommodation to meet her needs under s.21 NAA and the current house could not be suitably adapted
No action was taken to meet the families needs. The council sought to evict the family in Feb 2002. 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 6 months, 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, on October 15th, some 2 years after the initial assessment.
Points arising from the judgement:
- Enfield confused obligations under Housing Act for homelessness and their duty to provide residential accommodation under National Assistance Act 1948. Intentional homelessness has no bearing on the s.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 threshold of mistreatment required ie minimum level of severity. It was relevant that mistreatment had arisen by ‘corporate neglect’ rather than deliberate mistreatment. Nevertheless – described 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 persons physical and psychological integrity (Botta v Italy, 1998)
- The court cited from Clayton & 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 anothers company. The courtt 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 s.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’
- Enfields failure to act on the Sept 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 persons 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 anothers company. Yes, if there is a direct link between the services that could be provided and the users private/family life.
- It must the consider whether the interference is justified? To be justified any interference must be in accordance with the law, necessary – in pursuit of the protection of rights and freedoms of others, economic well being of the country, or protection of health and morals. Any interference must be proportionate, i.e. no greater than necessary to achieve the aim pursued.
- Economic well being has been argued in case about accommodating a child in need. It is permissible to take into account how public resources should be spent butan 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 equal breach. 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.
Damages were awarded and in setting the amount the court was guided by the level of awards made by the Local Govt Ombudsman where maladministration had been found in the exercise of community care functions. £8,000 was awarded to the wife and £2,000 to her husband.
The following extract from the judgement summarises the human rights issues in this case:
“Following the assessments in Sept 2000, Enfield was under an obligation not merely to refrain form 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 claimants 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.’
