CHAPTER 25
Human rights
25.5The basic framework of European law 25.7The primacy of EU Law 25.9Important principles of EU law 25.10The Charter of Fundamental Rights 25.22The Human Rights Act 1998 25.24The main ECHR provisions 25.25Public authorities and unlawful acts 25.29Positive obligations 25.40The application of ECHR law Section 2 Section 3 Section 4
25.44The United Nations Convention on the Rights of Persons with Disabilities Cases
25.53Mental health/capacity Social care
25.54Botta v Italy Application no 21439/93, [1998] ECHR 12, (1999) 2 CCLR 53 Article 8 ECHR might impose a positive obligation to provide services to a disabled person, but only where there was a direct and immediate connection between the service requested and the disabled person’s private life
25.55R v North and East Devon Health Authority ex p Coughlan [2001] QB 213, (1999) 2 CCLR 285, CA Removing a person from their home, unjustifiably breaching a promise they could stay there for life, was incompatible with Article 8 ECHR
25.56Marzari v Italy Application no 36448/97, (1999) 28 EHRR CD 175 Article 8 ECHR could impose a positive obligation to provide housing assistance in the case of a severely disabled man, where there was a direct and immediate serious adverse impact on his private life
25.57Z v United Kingdom Application no 29392/95, [2001] ECHR 333, (2001) 4 CCLR 310 Article 3 imposes a duty to take reasonable steps to provide effective protection to children and other vulnerable persons whom the state knows, or ought reasonably to know, are being subjected to inhuman or degrading treatment
25.58TP and KM v United Kingdom Application no 28945/95, [2001] ECHR 332, (2001) 4 CCLR 398 The failure to disclose to material that undermined the local authority case of child abuse against a male carer had been incompatible with Article 8 ECHR; as had the failure to promote contact between the child and her family
25.59Price v United Kingdom Application no 33394/96, [2001] ECHR 458, (2002) 5 CCLR 306 It had been a breach of Article 3 ECHR to detain a severely disabled woman in grossly unsuitable conditions
25.60Passannante v Italy Application no 32647/96, (2002) 5 CCLR 340 A delay in providing healthcare to which a person was entitled by virtue of contributions might raise an issue under Article 8 ECHR if there was a serious risk to health
25.61R (Bernard) v Enfield LBC [2002] EWHC 2282 (Admin), (2002) 5 CCLR 577 A serious failure to provide the services required under section of the National Assistance Act 1948, which had severe repercussion on Ms Bernard’s family and private law, breached Article 8 ECHR
25.62R (S) v Plymouth CC [2002] EWCA Civ 388, (2002) 5 CCLR 251 Fairness and the ECHR required disclosure of the son’s mental health records to his mother, in nearest relative displacement proceedings
25.63R (Beeson) v Dorset CC and Secretary of State for Health [2002] EWCA Civ 1812, (2003) 6 CCLR 5 It was compatible with Article 6 ECHR for disputes about social care charges to be determined by local authorities subject to judicial review, rather than a merits appeal
25.64R (A and B) v East Sussex CC [2003] EWHC 167 (Admin), (2003) 6 CCLR 194 The recognition and protection of human dignity is a core value protected by Article 8 ECHR. Nonetheless the rights of persons with disabilities required to be balanced against those of their carers, where there was a conflict
25.65Collins v United Kingdom Application no 11909/02, (2003) 6 CCLR 388 It was lawful in national law to resile from a ‘home for life’ promise and in this case is had been proportionate and compatible with Article 8 ECHR
25.66R (Anufrijeva) v Southwark LBC [2003] EWCA Civ 1406, (2003) 6 CCLR 415 A failure to provide a statutory service will usually only breach Article 8 ECHR where there is a level of culpability on the part of the authority and where the consequences are so serious as to be comparable with cases of violations of Article 3 ECHR although a lower threshold could apply in the case of children
25.67Sentges v Netherlands Application No 27677/02, (2004) 7 CCLR 400 The margin of appreciation was, especially in relation to the allocation of scarce healthcare resources, that it could not be said that the refusal to supply a robotic arm, in the context of the provision of other services, was incompatible with Article 8 ECHR
25.68Autism-Europe v France (complaint 13/2002) (2004) 38 EHRR CD265 The European Committee of Social Rights declared admissible a complaint that France was in breach of the revised European Social Charter by failing to ensure that children and adults were entitled to education in mainstream schools in sufficient numbers
25.69van Kuck v Germany Application no 35968/97, (2005) 8 CCLR 121 It was incompatible with Articles 6 and 8 ECHR to decline to fund gender re-assignment surgery on the basis of an incorrect understanding of the medical evidence
25.70Re Z (An Adult: Capacity) [2004] EWHC 2817 Fam, (2005) 8 CCLR 146 Local authorities were required to investigate, where it appeared that a vulnerable adult intended to undertake an assisted suicide, to ensure that the adult was competent properly, informed and not improperly influenced; but it had no power to stop an adult with capacity taking that course
25.71Pentiacova v Moldova Application no 14462/03, (2005) 40 EHRR SE23 It was not a breach of the ECHR radically to reduce haemodialysis provision, notwithstanding the suffering occasioned
25.72R (Hughes) v Liverpool CC [2005] EWHC 428 (Admin), (2005) 8 CCLR 243 A breach of duty to provide social care did not inevitably result in a breach of the ECHR, for which the threshold was high
25.73R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66, (2006) 9 CCLR 30 It was necessary to provide accommodation and support to asylum-seekers who were destitute or faced imminent destitution, to avoid a breach of Article 3 ECHR
25.74R (YL) v Birmingham CC [2007] UKHL 27, (2007) 10 CCLR 505 A privately run care home was not discharging functions of a public nature
25.75R (Weaver) v London and Quadrant Housing Trust [2009] EWCA Civ 587, [2010] 1 WLR 363 On the assumption that some functions of an RSL were public functions, it was a public body for the purposes of the Human Rights Act 1998 and for the purposes of judicial review proceedings, because its termination of a social tenancy was not a private act
25.76Tysiac v Poland Application No 5410/03, (2007) 45 EHRR 42 The absence of clear procedures for determining eligibility for an abortion and resolving disputes was incompatible with Article 8 ECHR
25.77R (Wilson) v Coventry CC; R (Thomas) v Havering LBC [2008] EWHC 2300 (Admin), (2009) 12 CCLR 7 Care home closures did not in general breach Article 2 ECHR
25.78Re E (A Child) (Northern Ireland) [2008] UKHL 66, [2009] 1 AC 536 Children and other vulnerable persons require special protection under the ECHR
25.79MAK and RK v United Kingdom Application nos 45901/05 and 40146/06, [2010] ECHR 363, (2010) 13 CCLR 241 Disproportionate actions by a hospital doctor, resulting in his erroneously concluding that parents had abused their daughter, were incompatible with Article 8 ECHR
25.80Watts v United Kingdom Application no 53586/09, [2010] ECHR 793, (2010) 51 EHRR SE5 A carefully managed process of care home closure did not violate rights under Articles 2, 3 or 8 ECHR
25.81Stanev v Bulgaria Application No 36760/06, (2012) 55 EHRR 22 Very poor living conditions in a care home for seven years amounted to inhuman and degrading treatment
25.82Đorđević v Croatia Application no 41526/10, [2012] ECHR 1640, (2012) 15 CCLR 657 The authorities were in breach of Articles 3 and 8 ECHR by failing to protect a disabled man and his mother from harassment by local ragamuffins
25.83Nencheva v Bulgaria Application no 48609/06, [2013] ECHR 554 Public authorities are under a duty to take reasonable steps to prevent the death of vulnerable individuals in state care and to undertake an effective investigation into deaths where the state was involved
25.84Commissioner of Police for the Metropolis v ZH [2013] EWCA Civ 69, (2013) 16 CCLR 109 Callous restraint of a young autistic male by the police violated his rights under Articles 3, 5 and 8 ECHR
25.85McDonald v United Kingdom Application no 4241/12, [2014] ECHR 492, (2014) 17 CCLR 187 It had been proportionate and compatible with Article 8 ECHR radically to reduce a person’s social care provision
25.86Campeanu v Romania Application no 47848/08, [2014] ECHR 789 Exceptionally, an NGO was permitted to bring a complaint under the ECHR on behalf of a deceased individual
25.87European Committee for Home-Based Priority Action for the Child and the Family (EUROCEF) v France Complaint No 114/2015 The European Committee of Social Rights upheld as admissible EUROCEF’s complaint that France was failing to discharge its duty under the revised European Social Charter to provide housing, social and medical assistance, social welfare and other benefits to unaccompanied minors, seeking asylum in France or living irregularly in France
25.88R (SG and NS) v Secretary of State for Work and Pensions [2015] UKSC 16, (2015) 18 CCLR 215 It was not a breach of Article 14 ECHR to treat women more harshly than men in the benefits regime and the best interests of their children were irrelevant
25.89Williams v Hackney LBC [2015] EWHC 2629 (QB) It had been a breach of the parents’ rights under the ECHR to elicit their uninformed consent to the accommodation of their children under section 20 of the Children Act 1989
25.90Matheison v Secretary of State for Work and Pensions [2015] UKSC 47, [2015] 1 WLR 3250 It was incompatible with Articles 8 and 14 ECHR, construed harmoniously with the UN Convention on the Rights of Persons with Disabilities, not to provide Disability Living Allowance to children after 84 days of hospital in-patient treatment
25.91Di Trizio v Switzerland Application no 7186/09, [2016] ECHR 143 Invalidity benefit was capable of falling within the ambit of Article 8 ECHR
25.92Guberina v Croatia Application no 23682/13, [2016] ECHR 287 Article 14 ECHR applies where a person is treated differently because of the status of another person and the UN Convention on the Rights of Persons with Disabilities was relevant to the proper construction of the scope of Article 14 ECHR