DRC Considering Support For Human Rights Appeal
The Disability Rights Commission (DRC) is considering supporting an appeal by the residents of a care home to the Court of Appeal after they lost a key human rights case in the high court. The DRC intervened in the case of Johnson and others v London Borough of Havering to highlight the lack of Human Rights protection open to disabled people in private care homes. The judgment, which has major implications for disabled people, held that a private care home providing accommodation to elderly residents, after these services had been ‘contracted out’ from a local authority, would not be providing a public function under the terms of section 6(3)(b) of the Human Rights Act (HRA) 1998, and are therefore not bound by the Act.
The Council which owns and controls the care homes in which Mrs Johnson and two other claimants reside had taken a decision to transfer residential care homes to a private sector provider.
Bert Massie, Chairman of the DRC, spelt out the implications for disabled people:
“Those in care homes are often in the most vulnerable positions in society. They have a particularly acute need for the protections of the Human Rights Act. Most notably, the right to life, the right to be protected from inhuman or degrading treatment and the right to respect for their private and family life. As rates of disability increase with age, the issues raised in this case are of key importance for disabled people both now and in the future.”
In the High Court, Mr Justice Forbes concluded that he was bound by the Court of Appeal ruling in R (on the application of Heather and others) v Leonard Cheshire Foundation (LCF). In that case, the court rejected the argument that the provision of accommodation by LCF (in accordance with arrangements made with various local authorities) was a public function. The DRC is considering supporting the claimants’ application for leave to appeal as there is a clear need for judicial review of current case law.
The decision that the High Court is bound by the Court of Appeal in Leonard Cheshire demonstrates clearly that current case law needs to change. In fact, all parties to the proceedings including the Department of Constitutional Affairs (who like the DRC intervened in the case) believed that the Leonard Cheshire case was wrongly decided and that disabled people living in private residential care should be protected by the Human Rights Act.
Bert Massie continued:
“This is a whole area where disabled people’s rights are either blurred or non-existent. We support improved rights to independent living and Lord Ashley is introducing a Bill in the Lords which would provide vital rights for disabled people to be able to live in their own homes with the correct amount of support services and the right to not enter residential care if they don’t want to. For those already in residential care this judgment has failed to clarify whether they have true protection under human rights legislation.”