Cloisters: Equality and Human Rights in Practice
Rights at home can secure the right to a home…..Disability and homelessness under the Human Rights Act 1998
The European Convention on Human Rights (ECHR) was ratified sixty-three years ago and individual applicants have been able to enforce their rights under the ECHR in the European Court of Human Rights in Strasbourg since 1966. Of the 18,500 judgments issued by the Strasbourg Court[1], only 526 of them have concerned the United Kingdom; of those, 305 judgments found at least one violation against the UK.
So, why the fuss about the ECHR?
It is not the ECHR itself that troubles the Government. Indeed, in August 2016 the Justice Secretary said that she was not going to pursue the UK pulling out of the ECHR[2].
That’s not the problem. The problem is the Government’s stated intention that it does not want our courts to be bound by the judgments of the Strasbourg Court and wants to limit the number of human rights claims in UK courts.
The ECHR rights were brought back home and let free in UK courts. They became part of UK law, in the shape of Schedule 1 to the Human Rights Act 1998 (HRA) which allowed individuals to bring human rights claims in UK Courts, rather than going to the Strasbourg Court.
The HRA has been in force for only 16 years but, in that time, has made a real and speedy difference: enough for the Government to want to replace it with a ‘Bill of Rights’. In contrast, taking a case to Strasbourg can take 5 years. That’s a long time if your human rights are being violated.
One recent example, a judicial review decision given this summer[3], shows how powerful the Convention can be[4].
In this case, GS, a severely disabled homeless Swiss national, lawfully in the UK, applied for judicial review to challenge the London Borough of Camden’s refusal to provide her with support in the form of accommodation. She was successful in her challenge, but under the Human Rights Act 1998 and not under the Care Act 2014, the legislation which sets out how an individual’s care and support needs should be met and which introduced the right to an assessment for anyone.
GS was born in Afghanistan. Having been relocated to Iran and then Switzerland, she obtained Swiss citizenship in 2006. She has complex physical and mental health problems. Having polio as a child, with further complications caused by osteoarthritis and severe spinal scoliosis, she is a wheelchair user. She is on medication for depression and has a ‘persistent delusional disorder of the paranoid type’, with a chronic history of suicidal thoughts.
GS’s mental health had begun to decline when she experienced difficulties in Switzerland which worsened when she had to deal with eight months of homelessness in Zurich, some of which was spent sleeping in the airport. Her delusional disorder relates to the Swiss authorities and causes no concern so long as she is not asked to return to Switzerland. Psychiatric assessors agreed that her mental health problem was ‘severe and enduring’. She did not have mental capacity to decide whether to return to Switzerland, nor to consent to treatment for her mental disorder. She could not be returned to Switzerland against her will.
In October 2015, a Camden social worker did a ‘needs assessment’ under the Care Act. As found by the Judge in the legal proceedings, GS underplayed her needs because she thought she would be more likely to get help if she was not considered to be too much trouble. The social worker concluded that she had no need for ‘care and support’ within the meaning of the Act.
GS’s judicial review claim was issued by the Official Solicitor as she lacked capacity and had no-one to act as a litigation friend. At that stage, she had no entitlement to benefits and lived in temporary accommodation. Her claim relied on arguments under both the Care Act and the HRA.
The Court concluded that the social worker had been entitled to rely on what GS had told him and that the ‘needs assessment’ under the Care Act had, therefore, been lawful. GS’s further difficulty was that, under the Localism Act 2011 (which might otherwise have required the Council to provide her with appropriate support), as a Swiss national, she was excluded from assistance under that legislation unless such support was necessary to avoid breaching her Convention Rights. GS’s lawyers argued that, in failing to provide her with care and support, the Council violated her right not to be subjected to inhuman or degrading treatment under Article 3 of the Convention.
The Court agreed.
It concluded that, when looking at GS’s rights under the Convention, the Court had to consider her actual condition (not what she had told the social worker, which had underplayed her true needs), so as to assess the effects on her of being made homeless.
More than ten years ago, the House of Lords – our highest court – had considered Article 3 of the Convention in the context of an asylum seeker who had missed the deadline for applying for asylum and so had been forced to sleep on the street as a result of receiving no support. In that case[5], the House of Lords had observed that, “Treatment is inhuman or degrading if, to a seriously detrimental extent, it denies the most basic needs of any human being…. It must achieve a minimum standard of severity, and…the threshold is a high one…. It is not necessary that treatment, to engage article 3, should merit the description of ‘your mountainish inhumanity’”. The Court also concluded that the duty to provide support to an individual in such circumstances arises “when it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life”; and that, “It might be possible to endure rooflessness for some time without degradation if one had enough to eat and somewhere to wash oneself and one’s clothing. It might be possible to endure cashlessness for some time if one had a roof and basic meals and hygiene facilities provided. But to have to endure the indefinite prospect of both, unless one is in a place where it is both possible and legal to live off the land, is in today’s society both inhuman and degrading.”
In GS’s case, the Court took into account her whole situation, including her social isolation and her physical and mental disabilities. The totality of her circumstances were important because they showed her acute vulnerability particularly where she had no secure accommodation or finances. If she were to become homeless, the Court held that there would be a breach of Article 3 of the ECHR because this would constitute ‘serious suffering’.
GS has been described as a case ‘turning on its own facts’ and, as with many such cases, in a sense that it is true. But, at a time of austerity, when care and other services are under severe pressure, it is useful to remember that the Convention sets minimum standards for human rights which, if enforced, can secure immediate amelioration of an individual’s circumstances. Enforcement, however, is down to us.
[1] From 1959 to 2015
[2] http://www.independent.co.uk/news/uk/politics/scrap-human-rights-act-british-bill-of-rights-theresa-may-justice-secretary-liz-truss-a7204256.html
[3] R (GS) v London Borough of Camden [2016] EWHC 1762 (Admin) (unreported, 27th July 2016)
[4] Of course, local authorities must also have regard to their duties towards disabled residents under the Equality Act 2010, including under the public sector equality duty under s.149 of the 2010 Act.
[5] R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396
© Cloisters, October 2016
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