Rights of people with disabilities under the spotlight – the Roundup

21 November 2016 by Thomas Beamont

In the news

The rights of people with disabilities in the UK have come under scrutiny recently by both the Supreme Court and a UN Committee. On 9^th November, the Supreme Court handed down judgment in a case concerning the ‘bedroom tax’. This judgment comes days after the UN Committee on Rights of Persons with Disabilities criticised the UK’s treatment of people with disabilities under recent welfare reforms, finding “grave and systematic violations of the rights of persons with disabilities.”

The Supreme Court and the ‘bedroom tax’

In 2013, legislation reduced by 14% the amount of housing benefit payment made to people renting social housing deemed to have one ‘spare bedroom’.  The reduction is 25% for those deemed to have two or more spare bedrooms.

The case of R (on the application of Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58 concerned a number of claimants, each of whom alleged that the bedroom tax amounted to unlawful discrimination, contrary to the claimants’ article 14 and article 8 ECHR rights and the state’s public sector equality duty.  See the previous post on this blog for a summary of the bedroom tax regime and the relevant Court of Appeal judgments.

Before the Supreme Court, certain of the appellants who were alleging discrimination relating to disability were successful.  The other appellants, including one alleging discrimination relating to gender were not.

The bedroom tax and disability

In relation to the successful claims of unlawful discrimination relating to disability, one was brought by Jacqueline Carmichael and her husband Jason, who is her full-time carer.  Mrs Carmichael is unable to share a bedroom with her husband due to the nature of her disability, and their home therefore has two bedrooms.  The second was brought Paul and Susan Rutherford, who are full-time carers for their disabled grandson and have a ‘spare bedroom’ to allow a further carer to stay overnight.

The Carmichaels had been unsuccessful before the Court of Appeal.  That court had reviewed the authorities, including one in which the bedroom tax had been successfully challenged in the case of a child who, by virtue of their disability, required a bedroom of their own. However, the Court found that as Mrs Carmichael is not a child, her ‘best interests’ were not a primary consideration, and therefore there was an objective reasonable justification for treating the Carmichaels less favourably than the child considered in that previous case.

The Supreme Court disagreed. Lord Toulson (with whom Lord Neuberger, Lord Mance, Lord Sumption and Lord Hughes agreed) found that there was “no sensible reason for distinguishing between adult partners who cannot share a bedroom because of a disability and children who cannot do so because of a disability” (at [46]).

The Rutherfords were also successful, as the government’s appeal was dismissed by the Supreme Court. The court found that, as the bedroom tax legislation allowed for an additional bedroom for a carer for disabled adults, there was no good reason why it should not do the same where an overnight carer is required for a disabled child; the Secretary of State’s approach displayed an “ironic and inexplicable inconsistency” (at [47]).

The ‘bedroom tax’ and gender

The Supreme Court also considered the case of a woman known as A, who lives in a three-bedroom property which has been adapted by police to protect her from a violent and abusive ex-partner, pursuant to the Sanctuary Scheme.  In January this year the Court of Appeal held that the application of the bedroom tax to users of the Sanctuary Scheme amounted to unlawful gender discrimination. The Government appealed the decision, arguing that the positive duty on the state to protect survivors of gender-based violence did not preclude the application of the ‘bedroom tax’ to the scheme, as in suitable cases any shortfall in housing benefit could be met by the payment of a discretionary housing payment.

The majority of the Supreme Court found that whilst A, and others in a similar situation, are entitled to receive protection for as long as they are in need of it, the means by which the state should provide that protection should not be dictated.  As a result, there need not be an exemption from the bedroom tax for those who live in a property under the Scheme. There was, in the court’s view, no automatic correlation between being within the Sanctuary Scheme and requiring an extra bedroom – in A’s case, she had an additional bedroom because at the time she moved into the property, no two-bedroom properties were available.

Lady Hale, with whom Lord Carnwath agreed, gave a dissenting judgment, finding that the lack of exemption resulted in both unlawful discrimination and a breach of the public sector equality duty, as the government had not considered the disproportionate impact of the bedroom tax on survivors of domestic violence before introducing the provisions.

The UN Committee on the Rights of Persons with Disabilities

The treatment of disabled people was also recently subjected to scrutiny by the UN Committee on Rights of Persons with Disabilities. The Committee’s report follows an inquiry established after a number of organisations representing people with disabilities alleged in 2013 violations of their rights following changes to the welfare system, and focuses on rights arising from the UN Convention on Rights of Persons with Disabilities, which was ratified by the UK in 2009. The observations also followed a report by the UK Government in 2011 in which it said that “the UK believes that the Convention is an important and necessary statement of the rights that all disabled people have, and must be able to exercise.”

The Committee’s report focused on three rights arising from the Convention. In relation to the first, the right to live independently and be part of the community (article 19), the UK Government in the 2011 report had claimed that “the UK’s approach to independent living goes well beyond the right as described in article 19”. On the second, the right to work and employment (article 27), the UK Government had said that “raising and meeting employment aspirations is a priority for the Government”. Finally, the Committee’s report considered the right to an adequate standard of living and social protection (article 28). The Government said in 2011 that the Welfare Reform Bill would create a “system that is simpler, fairer and in which work always pays.”

However, the UN Committee criticised the UK in its recent report, finding “grave or systematic violations of the rights of persons with disabilities.” Legal aid cuts affecting access to justice and the failure to undertake a cumulative impact assessment of the effect on persons with disabilities were cited alongside “several measures” which have “disproportionately and adversely affected” their rights.

The Government had responded to the Committee’s observations, criticising the scope of the report, and pointing to a £6bn increase in support for disabled people and people with health conditions since 2010.

Rights Info provides a detailed summary and analysis of the report here, whilst Jane Campbell offers an opinion on the Government’s “Scrooge-like approach” at the Guardian.

In the courts

Hesham Ali v Secretary of State for the Home Department

This blog reports that the Supreme Court has handed down an important judgment concerning the Home Secretary’s power to deport a foreign criminal, and the ability of such an individual to rely on his article 8 ECHR right to respect for his family life to resist deportation. Mr Ali, living in the UK illegally following an unsuccessful asylum claim and appeal, was convicted in 2005 and in 2006 of drug-related offences. He was sentenced to four years’ imprisonment. Section 32(5) of the UK Borders Act 2007 gives the Home Secretary the power to deport foreign citizens sentenced in the UK to 12 months or more in prison, unless a section 33 exception applies. Those exceptions include where deportation would breach the individual’s ECHR rights.

Mr Ali had successfully relied in the Upper Tribunal on his article 8 rights as he has been in a relationship since 2005 and has two children. However, the Home Secretary has a policy that custodial sentences of four years or more represent such a serious level of offending that the public interest in deporting such an offender almost always outweighs the offender’s article 8 rights. That policy is set out in the Immigration Rules, approved by Parliament. The majority of the Supreme Court held that the policy should be given considerable weight, and dismissed the appeal. Interestingly, the judgment contained observations by Lord Wilson at [65-81] that public concern about foreign criminals, as reflected in the Rules, can assist a court’s analysis of what is in the ‘public interest’.

Wright and Brown v the UK

Eric Brown and James Wright, both Irish nationals now living in Northern Ireland, were arrested following two attacks on army patrols in 1977 and were interviewed by police detectives. During the interview they admitted to being a member of a proscribed organisation, and having taken part in an attack. The interviews involved breaches of the Judges Rules, and of the protection of the access to a solicitor before or during police interview, and the presence of a family member or independent adult. The case was referred to the Court of Appeal by the Criminal Cases Review Commission (CCRC) in 2012. However, that court found the confessions admissible under emergency provisions legislation.  The Supreme Court in 2013 declined to allow permission to appeal, as the appeals raised no arguable point of law which it ought to consider and there was no real possibility that the court would find the convictions to be unsafe.

The applicants complained that their lack of access to a solicitor constituted a breach of their article 6 ECHR right to defend themselves through legal assistance. The Government submitted that the applicants had failed to exhaust domestic remedies and/or had lodged the complaint outside of the 6 month period from the date of the domestic decision.

The Court agreed with the government’s position. Considering the applicants’ failure to appeal the original conviction, instead relying on the reference by the CCRC, the Court found that the applicants could not rely on such a reference “in order to have the fairness of their trial in 1977 considered by this court in accordance with its current case law.” (at [52]) The application was therefore declared inadmissible.

In other news

Rights Info reports on the 66^th birthday of the UK’s signing of the European Convention on Human Rights. The post gives a summary of the ECHR and the Human Rights Act 1998, the Act of Parliament which gives legal effect to the ECHR in the UK. See the link for a host of videos and links about how implementation of the Convention has changed over time, how it is used by UK courts, and some milestone cases in its 66-year history.

The BBC reports that the publisher of the Sun on Sunday has agreed to make a payment to a celebrity, after the individual known as ‘PJS’ successfully appealed to the Supreme Court in May this year.  The case concerned PJS and his family’s article 8 ECHR rights to privacy, as weighed against the publisher News Group’s freedom of expression under article 10 ECHR. News Group had relied on section 12 of the Human Rights Act 1998, which provides that in a case which might affect the exercise of the article 10 right the court “must have particular regard to the importance of the Convention right to freedom of expression.” However, the majority of the Supreme Court held that that section does not mean that one article right carries more weight than the other. Read an in-depth analysis of this case by David Hart QC on this blog here.

by Thomas Beamont