Friday 15 April 2011

The Human Right To Dignity

This week was meant to be a quiet one, with Parliament in recess; no pressing issues on the news agenda; no MPs to brief. Meant to be. It hasn’t quite worked out this way, and we’ve all been busy preparing the continued campaign. This has meant that I haven’t had a chance to write about an interesting court case that’s been on my mind for the last couple of weeks.

Last week the Supreme Court heard an appeal case with huge implications for disabled people who receive packages of support. The court heard the appeal of Elaine McDonald, whose care package was cut by Kensington and Chelsea council even though it had assessed her as needing that support. McDonald became disabled following a stroke in 1999 and later broke a hip in a night-time fall. She had been provided with a weekly package of 22.5 hours of daytime support and another 10 hours of care seven nights a week.

A needs assessment by the council found night-time care was essential to provide supervision to prevent her falling while using the commode at night, due to a bladder condition. But in 2008 the council said it planned to cut her care package, and said she could be given incontinence pads instead of an overnight care worker, even though she is not incontinent. In November, the Court of Appeal ruled that the council had not breached care laws, McDonald’s human rights or the Disability Discrimination Act (DDA) by cutting her support.

The Supreme Court confirmed three weeks ago that it had granted her leave to appeal. McDonald’s case is being funded by the Equality and Human Rights Commission, which said in November that it feared other councils would use the judgment to “reduce community care and services for disabled people”. The Supreme Court’s decision will not be handed down for a few weeks yet, but it will be massively important for anyone who gets a care package from their local council.

This is because the Court of Appeal had found that a council could simply review a service-user’s care needs and then reduce their support, without needing to conduct a new assessment. The precedent set by this case would affect all service users. At the moment, if the council want to cut a person’s care package, they must show that their needs have changed and that they are thus entitled to fewer hours.

As service users will know, councils have been anxious to cut costs in recent years. This has led to a great deal of pressure to cut care packages, and the near-impossibility of new care packages being offered, but the need to re-assess has slowed the austerity zeal. This is because, regardless of whether they wish to cut, councils must show that the service user’s needs have lessened prior to cutting, and a council cannot be considered to have conducted a lawful assessment simply by reviewing a disabled person’s care package.

If the Supreme Court were to uphold the Court of Appeal’s decision, it would give councils free reign over decisions to cut care packages. It would also mean that it would be more difficult to argue that the refusal to provide care was a breach of her human rights to dignity and to a private and family life.

You might think that forcing a disabled person to, effectively, wet themselves at night when they are not incontinent is humiliating and degrading. But when councils are hunting for possible cuts, it may not be illegal for councils to cut care packages and force just that outcome.

1 comment:

Anonymous said...

I am so saddened and scared by how we are being treated like we are just an annoyance because we are broken.

It scares me that they will suddenly deem us able to work when we know we are not - But they (ATOS / DWP) say we are because they are moving people about like lumps od firt on the floor. It scares me that we are being taken back into the 1800s in Human Rights and Rights to Dignity and to HAVE a life!

This Govt lied to us so much and promised they would care for the disabled and yet all they have done is deem us all unworthy of support and deem us all scum.

ESA we are being forced on to JSA or into jobs we know will damage our health further.

DLA They had never planned on listening to a word any body said and now we will - Alot of us - End up with no support and no care. I am petrified for my future when they make up ridiculous tests saying ''if you had a weheelchair that you dont have then you would be fine and not disabled at all'' as an excuse to not help.

This Govt are evil and unfeeling - I believe there should be a huge Human Rights case against the Govt from ALL disabled people and when it gets to court I also believe that hundreds of thousands of 'witneses' could be brought to court from the people that would be damaged by loss of DLA and ESA and I believe the Govt should be done for its breach of any caring at all - For its uncaring attitude.

If i were rich then i would exist to them but because I am a nothing - They just want my life over with and to get out of their hair