8.61R (A and B) v East Sussex CC and the Disability Rights Commission [2003] EWHC 167 (Admin), (2003) 6 CCLR 194
Local authorities were under a duty to assess the needs and take into account the preferences of persons even when those persons have substantial communication difficulties, including by consulting carers as to how it is best to communicate
Facts: A and B were severely disabled sisters who continued to live in the family home, owing to a dispute with Sussex over aspects of the care package, in particular, as to the extent to which Sussex could be required to instruct carers to undertake manual lifting.
Judgment: Munby J held that the Manual Handling Operations Regulations 1992 imposed a duty on Sussex to avoid or minimise the risk of injury from hazardous lifts so far as reasonably practicable. That required Sussex to balance the Article 8 rights of the sisters, and their carers. On the difficulty of assessing persons lacking capacity to participate in the process, Munby J said this:
132. I have said that the assessment must take account of the disabled person’s wishes, feelings and preferences. How are these to be ascertained?
133. In a case where the disabled person is, by reason of their disability, prevented, whether completely or in part, from communicating their wishes and feelings it will be necessary for the assessors to facilitate the ascertainment of the person’s wishes and feelings, so far as they may be deduced, by whatever means, including seeking and receiving advice – advice, not instructions – from appropriate interested persons such as X and Y involved in the care of the disabled person.
134. Good practice, Miss Foster suggests, would indicate, and I am inclined to agree that:
(i) A rough ‘dictionary’ should be drawn up, stating what the closest carers (in a case such as this, parents and family, here X and Y) understand by the various non-verbal communications, based on their intimate long term experience of the person. Thus with familiarisation and ‘interpretation’ the carers can accustom themselves to the variety of feelings and modes of expression and learn to recognise what is being communicated.(ii) Where the relatives are present with the carers and an occasion of ‘interpretation’ arises, great weight must be accorded to the relatives’ ‘translation’.(iii) As I commented in Re S [2003] 1 FLR 292 at 306 (para 49):… the devoted parent who … has spent years caring for a disabled child is likely to be much better able than any social worker, however skilled, or any judge, however compassionate, to ‘read’ his child, to understand his personality and to interpret the wishes and feelings which he lacks the ability to express.(iv) That said, in the final analysis the task of deciding whether, in truth, there is a refusal or fear or other negative reaction to being lifted must, as Miss Foster properly concedes, fall on the carer, for the duty to act within the framework given by the employer falls upon the employee. Were the patient not incapacitated, there could be no suggestion that the relative’s views are other than a factor to be considered. Because of the lack of capacity and the extraordinary circumstances in a case such as this, the views of the relatives are of very great importance, but they are not determinative.
Comment: see now the Mental Capacity Act 2005 and the entitlement to an IMCA and, for persons who do not lack capacity but would experience substantial difficulty, see the Care and Support (Independent Advocacy Support) (No 2) Regulations 2014. For a useful and relevant analysis in relation to un-cooperative children, see
R (J) v Caerphilly CBC.
1[2005] EWHC 586 (Admin), (2005) 8 CCLR 255.