Earlier in this year, a High Court made a judgement which strongly criticised the actions of a council, whose officials had removed someone from their Shared Lives household, due to a safeguarding concern (later shown to be unfounded), without going through the proper processes. The man in question did not apparently wish to move but did not have the mental capacity to make the decision for himself. In that situation, council employees cannot simply decide to move someone from their home, regardless of whether it is their family home, a Shared Lives household or a residential home where they have resided for a long time. Instead, they must apply the processes set down in the Mental Capacity Act and in some cases, apply for a court order. The place where someone lives is their family life and we are all protected by the Human Rights Act when people seek to make decisions which affect our right to private and family life.
This decision, and others like it, could have ramifications for people affected by councils’ cuts. All around the country, residential homes and day services are being closed. In a few areas, people who live in Shared Lives households are already feeling under pressure to move to cheaper supported housing arrangements, where the support might be fairly low level, even when the individual does not feel ready for that change, or has had recent painful experiences of receiving less support than they feel they need in supported housing. This is not only opposite of the choice and control which the personalisation reforms are intended to promote, it is also a false economy: people who lack adequate support are much more likely to experience serious long term problems which lead to more expensive support needs.
As far back as 1999, the Court of Appeal (the “Coughlan judgment”, see paragraph 90 onwards) stressed that any attempt to move a lady who was in a NHS nursing home without her agreement would engage her rights (under Article 8 of the Human Rights Act) to respect for their home. Hopefully, recourse to the courts will be a last resort for most people, but as some councils start to panic as they feel the increasing pressures upon their budgets, we need to make sure that individuals and their families and advocates are much more aware than they are at present that decisions which disrupt or attempt to bring to an end to a person’s family or home life are open to Human Rights Act challenges.
An article in Community Care (http://bit.ly/ikjLfw) highlighted the successful work of a legal team to use the Human Rights Act 1998 to help disabled children and adults secure the support to which they are entitled. Their approach is to remind councils and providers of their duties, rather than aggressively pursue them. One housing provider changed its assessment points system to reflect a rights model, rather than a medical model, for instance.
Escaping the invisible asylum 