Enforcing human rights – what the Benefit Cap judgment means for future cases

A month ago the Supreme Court handed down a judgment which came within a whisker of finding that the ‘Benefit Cap’ (the limit on the amount of state benefits that can be paid to a family) was unlawful under the Human Rights Act 1998. Put very shortly, three of the Justices (a majority) found that the cap breached the obligation to treat children’s best interests as a primary consideration under Article 3 of the UN Convention on the Rights of the Child (UN CRC). However only two of the Justices (a minority) held that this led to a breach of Article 14 of the European Convention on Human Rights (ECHR), the prohibition on discrimination, on the facts of that case. As it is only the ECHR which is part of English law through the Human Rights Act 1998, the cap survived – by the skin of its teeth.

There is an excellent summary of the Benefit Cap judgment from the Child Poverty Action Group, who intervened in the case. The purpose of this post is to set out some thoughts about what the Supreme Court’s judgment means for future cases, particularly those involving disability or children’s rights issues. There are of course a host of human rights conventions and instruments which have been signed and ratified by the UK, including the under-used Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). All the principles discussed below should apply equally to these other conventions.

The reason the Benefit Cap judgment matters is that it shows the growing significance of international human rights conventions in English law. The traditional approach of the English courts was to give international human rights little if any weight. In our ‘dualist’ system international treaties only become part of our law when they are incorporated through an Act of Parliament – this is why we needed the Human Rights Act to ‘bring rights home’ in relation to the ECHR.

There is, as yet, no Act of Parliament to make the UN CRC (UN CRC) or the UN Convention on the Rights of Persons with Disabilities (CRPD) part of English law. So the Supreme Court’s judgment is the latest word on what legal force these international treaties have in the absence of a Children’s Rights Act or a Disability Rights Act.

Why does any of this matter? Put shortly, because the rights included in the UN CRC and the CRPD are far more extensive than the ECHR rights. To take two examples:

• Article 3 of the UN CRC, which was extensively considered in the Benefit Cap case, requires that in all actions and decisions concerning children their best interests are treated as a primary consideration. This means that children’s well-being has to be considered first by decision-makers and a decision which is contrary to children’s well-being has to be justified by reference to other important factors. This has all been clear since the leading Supreme Court case of ZH (Tanzania); Lady Hale and Lord Kerr’s judgments in that case are worth careful reading. There is an important General Comment from the UN Committee on the Rights of the Child which shows that Article 3 UN CRC applies both to decisions taken about individual children and to policy decisions and legislation affecting children. See Lord Carnwath’s judgment in the Benefit Cap case at [105]-[108] for discussion of the General Comment.
• Article 19 of the UN CRPD protects disabled people’s right to live independently and be included in the community. Although some of these rights have been read into Article 8 ECHR, the CRPD has a much clearer statement of the fundamental principles, starting with disabled people’s right to choose where the live on an equal basis to others. This right is going to be hugely important in the inevitable conflict with local authorities if the Independent Living Fund closes at the end of June.

These are simply two of the most obvious examples. There are plenty of others – rights I’m keen to explore in future cases include children’s right to participate (Article 12 UN CRC) and the right to equal recognition before the law for disabled people (Article 12 CRPD). Both Conventions also contain a host of ‘socio-economic’ rights (rights to health, housing, education etc) which are either absent from the ECHR or present in very diluted form (for example, the right to education in Article 2 of the First Protocol to the ECHR simply states ‘no person shall be denied the right to education’, and Article 8 ECHR contains no guarantee of a home).

Put simply, the UN CRC and CRPD are where the real action is for children’s and disability rights. See for example the discussion of the right of every child to ‘a standard of living adequate for the child’s physical, mental, spiritual, moral and social development’ in Article 27 UN CRC by Lady Hale at [227] in the Benefit Cap judgment.

So it is clearly in the interests of disabled people and children that it should be possible to enforce their specific human rights in English courts. What then does the Benefit Cap judgment say this key question?

The high point of the judgment comes from Lord Kerr – although it is important to stress that none of the other Justices agreed with Lord Kerr on this point, so it is not yet law to be followed. Lord Kerr’s conclusion at [257] was that ‘article 3(1) of UNCRC is directly enforceable in UK domestic law’. His reasoning, put very shortly, was that human rights treaties are different from other forms of international treaty. As Lord Kerr asked at [255], ‘Why should a convention which expresses the UK’s commitment to the protection of a particular human right for its citizens not be given effect as an enforceable right in domestic law?’.

This question may well be answered by the Supreme Court in a future case. However for the more orthodox approach we can turn to the judgment of Lord Reed, who was part of the majority which held that the Benefit Cap was lawful.

Lord Reed held at [83] that ‘It is not in dispute that the Convention rights protected in our domestic law by the Human Rights Act can also be interpreted in the light of international treaties, such as the UNCRC, that are applicable in the particular sphere’.* For international convention fans, this is partly a result of the Vienna Convention on the Interpretation of Treaties; see Lord Carnwath’s judgment at [116] for more on this. As Lord Kerr put it at [260], the courts have recognised that ‘the nature and content of Convention rights could be informed by international instruments which expressed standards that were internationally recognised’. See also the emphatic statement by Lord Kerr at [261] that ‘where the claimed right is directly relevant to the domestic issue to be decided, then recourse to the standards that the international instrument exemplifies is not only legitimate, it is required’.

This is not new; in Burnip v Birmingham City Council the Court of Appeal held that the CPRD has the potential to ‘illuminate’ the meaning of discrimination and justification under Article 14 ECHR (see [22], and Lady Hale’s judgment in the Benefit Cap case at [211]-[212]). However it is very helpful to have the basic principle so clearly stated and on an unanimous basis by the Supreme Court. Lady Hale reiterated at [218] that ‘our international obligations under the UNCRC and CEDAW have the potential to illuminate our approach to both discrimination and justification’.

This then is the main way in which the UN CRC and CRPD rights become real in English law – through influencing the interpretation of the ECHR rights. For example, in ZH (Tanzania) the decision to deport a mother was held to be a disproportionate interference with her Article 8 ECHR rights and therefore unlawful in part because there had been a breach of Article 3 UN CRC. In the Benefit Cap case, Lord Carnwath (the key swing vote in the case) found that there had been a breach of Article 3 UN CRC (see [128]). However crucially, he agreed with Lord Reed and Lord Hughes that there was no sufficient link between this breach and the discrimination against mothers who lost their ‘posessions’ – the benefits taken away under the cap – for the purposes of Article 1 of the First Protocol ECHR (see [129]-[132]). The cap therefore survived notwithstanding the breach of the rights of children affected by it identified by the majority.

A key consequence of the Benefit Cap judgment is therefore that the role of international conventions like the UN CRC and CRPD is reinforced where there is a direct link with the ECHR right in play. An obvious example would seem to be Article 19 CRPD, which is directly linked to the right to respect for disabled people’s private life and home protected by Article 8 ECHR. Watch this space for the cases bound to come to court on this point if the ILF closes (see above).

Lord Hughes (who also held that the Benefit Cap was lawful) identified two other ways in which treaties such as the UN CRC can be relevant in English law; see [137]. These were as follows; ‘First, if the construction (ie meaning) of UK legislation is in doubt, the court may conclude that it should be construed, if otherwise possible, on the footing that this country meant to honour its international obligations. Second, international treaty obligations may guide the development of the common law.’ What this means in practice is that if it is unclear what domestic law says on a particular issue then the interpretation chosen should be the one which is most consistent with the human rights of those affected. For a fuller discussion of these issues see Lord Kerr at [239]-[242], and consideration of the link to legitimate expectation at [243]-[246]. This may well be relevant in future cases – but the principle with greater relevance in practice may well be the link between the UN CRC and CRPD and the ECHR rights which are directly part of our law.

There is now a clear invitation to us all to rely on the international conventions whenever a relevant ECHR right is engaged, both in court and in wider arguments about policy, legislation and resource allocation. The relevant ECHR right is most likely to be either Article 8 (right to respect for private and family life and the home) or Article 14 (non-discrimination). But there may well be other relevant rights – including the rights relating to ‘possessions’ including benefits (Article 1 of the First Protocol) and education (Article 2 of the First Protocol) – which provide the gateway to make the UN CRC and CRPD rights real. In every case there must be the ‘necessary connection between the ECHR right under consideration and the international instrument’; see Lord Hughes in the Benefit Cap case at [146].

I hope this post is some use as a summary of a complex judgment. As always, the best source of information is the judgment itself. I also hope to be able to blog further about other cases which have taken up the baton from the claimants who challenged the Benefit Cap and showed it breaches children’s rights.

* See also at Lord Reed at [86]: ‘It is clear, therefore, that the UNCRC can be relevant to questions concerning the rights of children under the ECHR’. As Lady Hale put it at [217],’ the international obligations which the United Kingdom has undertaken are also taken into account in our domestic law insofar as they inform the interpretation and application of the rights contained in the European Convention, which are now rights in UK domestic law.’

Amendments to the key duty for disabled children’s social care

At one level this is an extremely geeky post – covering the amendments to various social care duties for disabled children’s social care now the Children and Families Act 2014 and the Care Act 2014 are both in force. However it serves an important purpose, which is to highlight how far we are from a single coherent scheme to make sure the education, health and care needs of every disabled child are properly met. Some of the changes made are also potentially important, including a new duty to provide information on services to disabled children.

This post concerns the attractively named Care Act 2014 and Children and Families Act 2014 (Consequential Amendments) Order 2015. This is ‘secondary’ legislation, being law made by the Minister – in this case the Secretary of State for Education.

Its purpose is to make changes to the various Acts of Parliament which are affected by the new schemes introduced by the Children and Families Act 2014 and the Care Act 2014. You might ask how a Government Minister gets to change the wording of an Act of Parliament – surely that’s a job for, well, Parliament. The answer to this lies in section 136 of the Children and Families Act 2014 and section 123 of the Care Act 2014. Through these sections Parliament has allowed the Secretary of State to make an Order changing other Acts of Parliament as a consequence of the two Acts passed in 2014.

Any boy has she done so. The Order makes amendments to 39 different Acts of Parliament on my count. These include the Opticians Act 1989 and the Water Industry Act 1991 which need not concern us – but on any scale it’s a huge number of changes. There is a very helpful summary of all the changes in the Explanatory Memorandum published with the Order for those who want the complete picture.

To see the changes themselves you need to look at the Schedule to the Order. Many of the amendments concern restricting previous legislation solely to Wales. However there are important changes made through the Order to section 2 of the Chronically Sick and Disabled Persons Act 1970 – which I am constantly banging on about because it is the key duty to provide disabled children with social care services. These changes apply to England and Wales and are found from paragraph 19 of the Schedule.

What the Order does is insert new sub-sections into section 2 of the CSDPA 1970 – see para 21 of the Schedule. Sub-section 4 now reads:

Where a local authority have functions under Part 3 of the Children Act 1989 in relation to a disabled child and the child is ordinarily resident in their area, they must, in exercise of those functions, make any arrangements within subsection (6) that they are satisfied it is necessary for them to make in order to meet the needs of the child.

So the key duty to provide disabled children with social care services is now in section 2(4) of the CSDPA 1970 (as amended). It seems to me that this works in the same way as the previous duty in section 2(1) – the local authority must assess the child’s needs under section 17 of the Children Act 1989 and the Working Together statutory guidance, and then decide whether it is ‘necessary’ to provide any of the specified list of services.

The list of services is now found in sub-section 6. Some of the wording has been tidied up but it is in practice the same as the previous list – and so covers every type of conceivable social care service apart from residential short breaks. To emphasise – there is an individual right to these services for every disabled child where after an assessment the local authority accepts that it it is necessary to meet their needs by providing them.

It is also very helpful that the new 2015 version of the Working Together guidance says at p18 that:

When undertaking an assessment of a disabled child, the local authority must also consider whether it is necessary to provide support under section 2 of the Chronically Sick and Disabled Persons Act (CSDPA) 1970. Where a local authority is satisfied that the identified services and assistance can be provided under section 2 of the CSDPA, and it is necessary in order to meet a disabled child’s needs, it must arrange to provide that support.

This shows the link between the duty to assess under the Children Act 1989 and the duty to provide services under the CSDPA 1970 in the clearest possible terms.

The Order also creates a new right to information about the services for disabled children under CSDPA 1970 section 1(5) – see para 20 of the Schedule. This seems to be a kind of tailored ‘local offer’ for individual children which could be very important. The Explanatory Memorandum says nothing about the purpose of this amendment – it simply seems to have been made to reflect the existing duty in relation to disabled adults. However any new right to information for disabled children must be welcomed – and interestingly the right is for the child to be informed, not the parent. I look forward to a host of new accessible information on available services for disabled children from every local authority.

There may well be some other important amendments – for example the carer’s assessment duty under section 6 of the Carers and Disabled Children Act 2000 has been amended to apply only to Wales, as there are new provisions for parent carer’s needs assessments in England. However as far as I can tell there is nothing of substance changed – nor should there be in an Order intended to make only consequential amendments.

To return to where this post started – in no rational world would we need to amend 39 Acts of Parliament when we have introduced two new Acts that are supposed to ensure proper support is provided to disabled children and adults. However what the Order highlights most clearly is that social care for disabled children falls through the gap between the two 2014 Acts – which is why this support is still being provided under an Act passed for disabled adults in 1970. Perhaps this will be remedied in the next Parliament.

Easier read – Disabled people’s rights if the Independent Living Fund closes

I’m very grateful to Anne Collis at Barod for taking the time to turn my long post about the closure of the Independent Living Fund into easier words.

This is about England. Scotland and Wales have different rules.

The Government says they are closing the Independent Living Fund on 30 June 2015.

Disabled people are still campaigning to #SaveILF. Two disabled people have complained to the United Nations Disability Committee. But the Government has not yet changed its plans.

This is what the Government plans to do in England if the Independent Living Fund closes.

The Government will give extra money to local councils. But:

• They are giving less money than the Independent Living Fund spent
• The local council does not have to spend the extra money on support for disabled people

Many people are very worried and angry about this.

• The Independent Living Fund supports 18,000 disabled people. This is a lot of people.
• How can local councils give them good support and make budget cuts?

There are elections in May. Only the Green party has said they will save the Independent Living Fund.

So we need to plan for 1 July 2015.

Disabled people need to know their legal rights.

Anyone getting money from the Independent Living Fund needs to plan for 1 July 2015.

From 1 July 2015, people who get support from the local council and the Independent Living Fund will get all their support from the local council.

By law, people should still get enough support.

But I think people may need to challenge their local council to get this support.

The Care Act 2014 is a law. Everyone must do what a law says.

Chapter 23 (from paragraph 26) of the Care Act guidance says what happens when the Independent Living Fund closes. There is also an Easy Read version of the guidance.

The Care Act 2014 says that local councils must meet all a disabled person’s “eligible needs” when the Independent Living Fund closes.

This means local councils must know each person’s “eligible needs” before 1 July 2015.

The Care Act has rules to work out someone’s “eligible needs”.

“Eligible needs” are needs that the local council must meet.

Local councils must make plans so people do not have problems with support while the Independent Living Fund is being closed

You may have “eligible needs” if you need support so you can:

• Be safe at home
• Keep your home in a fit state
• Make and keep friendships
• Get involved in work, training, learning or volunteering
• Use community services
• Care for a child (if you have a child)

Section 18 of the Care Act 2014 just says the local council must “meet needs”.

Some local councils may think this means they can put someone into a care home if this is cheaper than support to live at home.

The guidance (paragraph 10.27) says local councils can balance what someone wants with how much money the local council has.

But the guidance also says local councils are not allowed set a maximum amount they will pay for support to live at home.

Paragraph 11.7 says local councils must at all times respect how someone wants their needs met.

It says local councils cannot assume people must move into a care home just because it is the cheapest option.

The Human Rights Act 1998 means:

• people cannot be treated in an inhuman way
• people have a right to a family life

The Courts may also look at the UN Convention on the Rights of Persons with Disabilities.

This says disabled people must be able to choose where they live, just like people who are not disabled.

I think that it would be against the Human Rights Act to make a disabled person go and live in a care home when the Independent Living Fund closes.

So if a local council says someone must go into a care home, they may be breaking the law.

The Care Act says local councils must “promote that individual’s well-being”.

The Care Act has a list of what “well-being” means.

The list sounds as if people cannot be forced into a care home.

But the Courts will have to decide if the local council can force someone into a care home despite what the Care Act says.

The Care Act guidance (paragraph 11.26) says someone cannot get direct payments if the local council could arrange the same support and achieve the same outcomes but cheaper.

The Care Act says what must happen when the Independent Living Fund is being closed:

• Someone from the Independent Living Fund and someone from the local council should come to see you
• The local council must do a full assessment, using the Care Act rules

Just doing a visit is not the same as doing a full assessment.

I hope we can still #Save ILF.

• Tom Shakespeare spoke on Radio 4’s A Point of View. He said why we need to #SaveILF.
• The Independent Living Strategy group are about to launch a survey about independent living.
• Kate Belgrave and Ros Wynne-Jones made a film with disabled people saying why we need to keep the Independent Living Fund.

The Independent Living Fund helped disabled people to be independent. Will the Care Act do the same thing?

If the Independent Living Fund closes, I think a lot of people may need to go to Court to get their rights.

Here are some lawyers who may be able to help you go to court. They can tell you about legal aid to pay for the costs of going to court.

I hope this post helps you to plan for 1 July 2015.

We must not let local councils act as if disabled people do not have human rights.

Please add your comments on how your local council is getting ready for 1 July 2015 and any worries or questions you have.

#SaveILF

What’s the point of a parent carer’s needs assessment?

In all the excitement of Care Act Day, it is important not to lose sight of the fact that important provisions of the Children and Families Act 2014 for parent carers of disabled children and young carers also come into force today (1 April 2015).

I plan to blog about the duties to young carers contained in both the Children and Families Act and Care Act shortly. However this post aims to answer a simple question which I have been asked a number of times – what’s the point of the new parent carer’s needs assessment (PCNA) introduced by section 97 of the Children and Families Act?

One thing is crystal clear – there is no new right to services for parent carers of disabled children, as there is for family carers of disabled adults under the Care Act. What we have for parent carers of disabled children is a new assessment duty – and one that should lead to a better informed decision about the holistic package of support that disabled children and their families need.

Section 97 inserts three new sections into the Children Act 1989 with effect from today (1 April):

1. Section 17ZD is the assessment duty. It requires that a local authority must carry out a PCNA where it appears to the authority that the parent carer may have needs for support or the authority receive a request from the parent carer to assess, and the local authority are satisfied that the disabled child and family are eligible for support under section 17 itself. Given the broad definition of ‘disabled‘ children in need under section 17(10)(c) and (11) and the fact that support can be provided for any family member of a disabled child under section 17(3), this second requirement is unlikely to prove a problem. Nor is there any requirement for parent carers to be providing a particular level or intensity of care; any parent carer who requests a PCNA is entitled to one – indeed as with the Care Act assessment duty local authorities must proactively seek out parent carers who may have needs for support and offer them an assessment (a point reinforced by sub-section 14). The only exception to the duty to assess is if a ‘care-related assessment’ has already been carried out and the needs have not changed – unlikely given the dynamics of family life generally and particularly with disabled children.
2.  Section 17ZE, which supplements the assessment duty by:
   1. Making clear that providing care includes providing practical or emotional support (sub-section 2);
   2. Allowing for the PCNA to be combined with any other assessment of the parent carer or disabled child (sub-section 3). However in my view this should only be done with the agreement of all concerned, including the disabled child where they are capable of giving or withholding consent;
   3. Allowing for regulations to be made to supplement the duty (sub-section 4). However as at 1 April 2015 no such regulations have been made.
3. Section 17ZF, which is titled ‘Consideration of parent carers’ needs assessments‘. This is the ‘so what?’ duty – having done the PCNA, what are the local authority supposed to do with it? The answer is that they must ‘consider the assessment and decide‘:
   1. Whether the parent carer has needs for support in relation to the care which he or she provides or intends to provide;
   2. Whether the disabled child cared for has needs for support;
   3. If A and / or B applies, whether those needs could be satisfied by services which the authority may provide under section 17; and
   4. If yes, whether or not to provide any such services in relation to the parent carer or the disabled child (emphasis added)

So the high point of the PCNA duty is a duty to decide whether or not to provide services to meet the needs identified through the assessment. This falls some way short of the duty to meet eligible needs created by section 20 of the Care Act for family carers of disabled adults.

Importantly however, in carrying out every PCNA the local authority must have regard to the well-being of the parent carer and the need to safeguard and promote the welfare of the disabled child cared for and any other child for whom the parent carer has parental responsibility; section 17ZD(10). ‘Well-being’ here has the same meaning as under the Care Act and so is very broad. This should mean at least that the ‘holistic’ assessment of disabled children required by the Working Together statutory guidance is strengthened by a specific assessment of the needs of their primary carer(s). 

There are however a number of further problems with PCNAs:

1. The most obvious problem is that they are only available for parent carers. Luke Clements has described this as the ‘grandparent problem‘ (see p53). In order to ensure that non-parent family carers still have a right to an assessment, section 1 of the Carers (Recognition and Services) Act 1995 is remaining in force. As Prof Clements notes, ‘The 1995 Act creates a higher assessment threshold for carers than does the Children & Families Act 2014, section 97 (ie the ‘regular / substantial care’ requirement and the obligation on the carer to request an assessment)‘. This ‘solution’ is therefore messy at best.
2. A second fundamental problem is the complete absence of read-across between the PCNA duties and the key duty to provide disabled children with social care services, which is found in section 2 of the Chronically Sick and Disabled Persons Act 1970. This may not be a problem in law, as the case law is clear that local authorities discharge their duties under the CSDPA 1970 by carrying out their functions under section 17 of the Children Act 1989. However it will almost certainly be a problem in practice, as local authorities will be well aware that the section 17 duty is owed generally to children ‘in need’ and does not give rise to an individual right to services for a particular child or family – so said the majority in the House of Lords in the Barnet case. So we may see local authorities wrongly assuming that neither the PCNA or a child ‘in need’ assessment for a disabled child can lead to services as of right to the child. Any misapprehension to this effect needs to be corrected urgently. It is true that services under the CSDPA 1970 can only be provided to the child not the parent – but as we have seen one of the functions of the PCNA is to determine what level of support should be provided to the child.
3. There are now far too many social care assessment duties for disabled children, young people and their family carers. At the last count we have:
   1. The implied duty to assess disabled children as children ‘in need’ under section 17 of the Children Act 1989, as governed by the Working Together statutory guidance;
   2. The duty to carry out an assessment of education, health and care needs under section 36 of the Children and Families Act 2014 – the route in to an EHC Plan;
   3. The PCNA duty in section 17ZD of the Children Act 1989;
   4. The duty to assess all family carers in section 1 of the Carers Act 1995; and
   5. The Care Act transition assessment duties for both disabled young people and carers – which will be the subject of a later post.

This may not even be a complete list – for example it seems the parent carer’s assessment duty in section 6 of the Carers and Disabled Children Act 2000 is still in force, although this would appear to have been made redundant by the advent of PCNAs. Such a lengthy list of assessment duties doesn’t seem to me to be a sensible approach to making sure the needs of disabled children and families are met in a streamlined way.

So at best there is only a qualified welcome to PCNAs. They are far from pointless as they should inform the service provision decision for the disabled child in their family context. However their impact will depend to a great extent on whether local authorities comply with the spirit not just the letter of the new obligations – which is a central theme across all the new reforms.

Comments on emerging practice re PCNAs welcome below.