DAA News Network

UK: Legal ruling means authorities can more easily cut services to elderly and disabled people

Posted 09/11-10 at 14.58

The Appeal Court has ruled that in order to save money it is legal for Kensington and Chelsea Council to withdraw services, even through the circumstances of the person using those services remains the same. The precedent set by this case means that all councils will be able to reduce services almost at will.

Luke Clements, professor of law at Cardiff University and a leading expert on care legislation, described the judgment as "chilling". He said: "There are two problems with this approach: one, a narrow legal one and the other that it is an indictment of any society that lays claim to be civilised."

The case involved a woman who needed assistance in the night to use a commode. The council decided that they could cut costs by having her use incontinence pads, something she did not want. "They say they have taken account of my personal integrity. That's absolutely and completely untrue. I don't see what's dignified about having somebody cleaning me up and clearing up the mess in the morning. "I can speak up for myself, but what worries me is what's going to happen to people who can't, people who might have dementia, if they are treated like this?" The court found that the authority did not breach Article 8 of the European Convention on Human Rights [ECHR] (right to privacy and family life) or the Disability Discrimination Act. This suggests that the courts will only intervene in disputes about the level of care being provided in limited circumstances, something that is significant in an environment of unprecedented public spending cuts. Douglas Joy, senior solicitor at the Disability Law Services, which together with the Equality and Human Rights Commission took the case to the Appeal Court, said that efforts were being made to take it to the supreme court for a definitive ruling.

Editorial comment:

As stated above, the significance of this case cannot be overstated. It could have an immensely negative impact on disabled and elderly people, as councils look for ways to save money following the massive budget cuts announced by the government. Unfortunately, the case was taken under, what to DAA seems to have been, the wrong article of the ECHR, demonstrating an apparent misunderstanding of the Human Rights Act. Because of the defense of ‘reasonableness' (that it is too expensive to provide a carer to assist with using the commode), the DDA is also not helpful in this instance. We feel a more positive result would have been achieved if the case had been based on Article 3 of the ECHR, the prohibition against ‘inhuman and degrading treatment'. Having to spend the night soaked in urine clearly falls under this article. Furthermore, this article sets out an absolute right, not subject to any qualification and has been successfully used in similar cases.





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