Tuesday, 13 December 2011

Challenging cuts part deux

Hellooooooooo again.  Here is part two of ‘How the law can be used to fight cuts to services for disabled people.’  Part one looked at introduction, legal duties and best interests.  Part 2 will cover consultation and human rights followed closely by part three on the disability equality duty and conclusion.  Over to Steve (in black type).


Whether or not there is a duty to consult, once a public body decides to consult it has to do so properly. This essential starting point was made clear in R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 (Coughlan). In other words, whether consultation is a duty or a choice, once launched the standard and quality of the consultation has to be the same.
Even if there is no specific duty to consult on a particular issue, disabled people’s organisations, parents’ forums and other local groups may well have a legitimate expectation that there will be consultation about changes to important services. The recent Building Schools for the Future case provides an example of a failure to consult at all amounting to an ‘abuse of power’; R (Luton BC and others) v Secretary of State for Education [2011] EWHC 217 (Admin). Once consultation begins, Coughlan makes clear that four things must be in place to make it lawful:

1) Public bodies must consult in good time – so that responses to the consultation can still genuinely be taken into account before the final decision is made;
2) There must be enough information so that people responding to the consultation understand the proposals and can make an informed response;
3) There must be enough time for responses. Whether ‘enough’ time has been given will be judged by the court, if the consultation is challenged, on the facts of the individual case. However, for example, a very short consultation over a school holiday period in relation to a service used by disabled children is unlikely to be ‘enough’ time;
4) There must be genuine consideration of the responses – not just ‘lip service’ paid to them.
If a particular consultation does not match these requirements, any child, adult or family potentially affected by the proposed changes can bring an application for judicial review to challenge the consultation. If the court agrees that the consultation is unlawful then the court will quash it and make the public body consult again – and do it properly the next time.

Human rights

The most important human rights in the context of cuts to services are those protected under article 8 of the European Convention on Human Rights, incorporated into English law through the Human Rights Act 1998. Article 8 requires respect for two distinct but linked rights, the right to family life and the right to private life. The right to family life is simpler to understand; respect for all types of family is required, but the right to private life is particularly important for disabled people.
Private life includes a person’s ability to function socially (R (Razgar) v Home Secretary [2004] 2 AC 368, speech of Lord Bingham) and a person’s ‘physical and psychological integrity’ (Pretty v UK (2002) 35 EHRR 1). In effect, this means that disabled people have a right under article 8 to services and support to enable their personalities to develop and for them to function socially.
Article 8 requires the state not to ‘interfere’ with a person’s right to respect for family and private life unless that interference is ‘in accordance with the law’ and ‘necessary in a democratic society’, which means proportionate (see below). Any decision to cut or withdraw services that support a disabled person’s ability to function socially and/or their psychological integrity is an ‘interference’ with that person’s article 8 rights. For this ‘interference’ not to breach article 8 and be unlawful it must meet these two requirements. To reiterate, any cut to a service to disabled people will breach article 8 unless it is (i) in accordance with the law and (ii) proportionate.

For the purposes of article 8, the ‘law’ includes not just legislation but (for example) statutory guidance. This means that a breach of (for example) the Framework for the Assessment of Children In Need and Their Families, which requires disabled children to be assessed and provided with sufficient services to secure their well-being, is likely to result in an unlawful interference with a child’s article 8 ECHR rights.

Even if all the relevant ‘law’ has been complied with, the final test under article 8 is whether the decision is proportionate (‘necessary in a democratic society’). The key judgment here is the speech of Lord Bingham in an immigration case, Huang v Home Secretary [2007] 2 AC 167. Lord Bingham emphasised that for a decision to be proportionate it must be no more than necessary to accomplish the objective. So in the context of cuts, if other less drastic steps could be taken to achieve the necessary savings then the decision cannot be proportionate and therefore the proposed cut would breach article 8. Furthermore, Lord Bingham added in Huang that the ‘overriding requirement’ of proportionality was ‘the need to balance the interests of society with those of individuals and groups’. The ultimate question under article 8 in any cuts case therefore is whether the wider economic interest justifies the decision to withdraw or reduce services to vulnerable people.

What about a situation where a disabled child or adult is not yet receiving services? There may then be a ‘positive’ obligation under article 8 for a public body to show respect for the person’s right to family and/or private life through providing services. This is particularly so for children if such action would ‘enable family life to continue’ (Anufrijeva v Southwark LBC [2004] QB 1124, judgment of Lord Woolf).

Bringing a challenge under article 8 requires a person to be an actual or potential ‘victim’ of a violation of their rights; section 7(1) of the Human Rights Act 1998. This is not supposed to be a high hurdle and any child or family who are or may be directly affected by cuts would be able to bring such a challenge.

I know it’s a bit dry – but worth knowing about so parents and people with autism (in England and Wales) can see what their legal position might be in the event that they have to challenge a decision on cuts to services.  A friend of mine who runs a support group is finding that more and more adults with autism are coming to him for advice when their Direct Payments have been cut.  Local authorities have been trying to change the assessment criteria for social care services – proposing to help people in the ‘critical’ category but withdraw services from those in the ‘substantial’ category. In Kirklees, a neighbouring authority to me, a legal challenge was brought on behalf of three residents (two with autism), following poor consultation (as outlined above).  The Council settled the matter (by reinstating services to those meeting the ‘substantial’ criteria) before the matter went to court.
Because the people who brought the challenge were vulnerable adults receiving state benefits, they were eligible for legal aid, so the challenge didn’t have a financial cost to the family.  Worth remembering!!

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