Sally Robertson considers the decision of R (GS) v London Borough of Camden  EWHC 1762 (Admin), 27 July 2016 in this blog.
The Human Rights Act 1998 incorporated the European Convention on Human Rights (ECHR) into UK law from 2000. Sixteen years later the ECHR is under attack. Why? At first blush the reason is difficult to understand. After all, it is only in the last 50 years that individuals in the United Kingdom have been able to enforce ECHR rights before the European Court of Human Rights in Strasbourg and over that time the impact looks low key. Of the 18,500 judgments between 1959 and 2015, just 526 concerned the United Kingdom directly and of those, only 305 judgments found one or more violations against the UK.
So, why the fuss about the ECHR?
It is not the ECHR itself that troubles the Government. Indeed, in August 2016 the Justice Secretary said that she was not going to pursue the UK pulling out of the ECHR.
That’s not the problem. The problem is that the Government says it does not want our Courts to be bound by judgments of the Strasbourg Court. Having brought back home the ECHR rights, letting the ECHR free in UK Courts in the shape of Schedule 1 to the Human Rights Act 1998, they find the consequences unacceptable.
The Human Rights Act 1998 during its 16 years of life has made a real and speedy difference: enough for the Government to want to scrap it and replace it with a ‘bill of rights’. In contrast, taking a case to Strasbourg can take 5 years. That’s a long time to live with a human rights violation.
One recent example, a judicial review decision given this summer, shows how powerful the ECHR can be. And what we risk losing.
In this case, GS, a severely disabled homeless Swiss national, lawfully in the UK, applied for judicial review to challenge the London Borough of Camden’s refusal to provide her with support in the form of accommodation. Lacking capacity and with no-one else to call upon, the claim was brought with the Official Solicitor as her litigation friend.
GS was born in Afghanistan. Having been relocated to Iran and then Switzerland, she obtained Swiss citizenship in 2006. She is now 49 years old. She has complex physical and mental health problems. After polio as a child, with further complications caused by osteoarthritis and severe spinal scoliosis, she is wheelchair-dependent. She experiences chronic pain. She is on medication for depression and has a ‘persistent delusional disorder of the paranoid type’, with a chronic history of suicidal thoughts at stressful times.
GS’ mental health had begun to decline when she experienced difficulties in Switzerland which worsened when she had to deal with 8 months of homelessness in Zurich, some of which was spent sleeping in Zurich airport. Her delusional disorder relates to the Swiss authorities. It causes no concern so long as she is not asked to return to Switzerland. Psychiatric assessors agreed her mental illness was ‘severe and enduring’. She did not have the mental capacity to decide whether to return to Switzerland, nor to consent to treatment for her mental disorder. She could not be returned to Switzerland against her will.
In October 2015, a Camden social worker had done a needs assessment under the Care Act. He found she had no need for care and support within the meaning of that Act.
GS’ challenge against the refusal of permanent accommodation was successful but not under the Care Act 2014: a need for accommodation alone does not amount to a need for ‘care and support’ under the Care Act.
Nor was GS successful under the broad powers of section 1 of the Localism Act 2011 read on its own. Indeed, as a Swiss national, Switzerland’s status as a member of the European Economic Area (EEA) meant her nationality excluded her from any support or assistance under the Localism Act.
However, a specific provision in the Nationality, Immigration and Asylum Act 2002, lifts the exclusion from help under the Localism Act. Paragraph 3 of schedule 3 to the 2002 Act says that exercising a power or performing a duty is not prevented:
“… if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of—
(a) a person’s Convention rights, or
(b) a person’s rights under the EU Treaties.”
So success and help came only because the seriousness of her physical and mental disabilities meant that homelessness would breach her absolute right under Article 3 of the ECHR “not to be subjected to … inhuman or degrading treatment”.
It may seem odd that her disabilities were serious enough to help trigger Article 3 of the ECHR, yet not be bad enough to require care and support under the Care Act. The difficulty arose because, as the Court found, she had underplayed her need for help when she was assessed by the Camden social worker. She had thought she would be more likely to get help if they thought she would not be too much trouble.
The Administrative Court held that Camden were entitled to rely on what she had told the social worker. But when looking at her ECHR rights, the Court had to take into account her actual condition so as to assess the effect on her of being homeless.
The Court took into account the entirety of GS’ circumstances, including her potential social isolation, physical disabilities, pain, mental health condition and the physical difficulties she encounters. It was the totality of her position the Court considered important. The medical evidence showed her vulnerability and that social stressors around accommodation and finances worsen her mental condition, including her thoughts of suicide. Her social isolation and her accommodation issues in the context of her physical and mental health went to the breach of her Convention rights. The court held that if she were to become homeless, there would be a breach of Article 3. This was ‘serious suffering’ and got over the high threshold in R (Limbuela) v Secretary of State for the Home Department  1 AC 396.
In Limbuela the House of Lords had considered Article 3 in the context of an asylum seeker who had missed the deadline for applying for asylum, so had been forced to sleep on the street because he was refused any support. Lord Bingham observed that “Treatment is inhuman or degrading if, to a seriously detrimental extent, it denies the most basic needs of any human being…. It must achieve a minimum standard of severity, and … the threshold is a high one… It is not necessary that treatment, to engage article 3, should merit the description [of] ‘your mountainish inhumanity’.
The duty arises:
“when it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life”.
Baroness Hale added that:
‘It might be possible to endure rooflessness for some time without degradation if one had enough to eat and somewhere to wash oneself and one’s clothing. It might be possible to endure cashlessness for some time if one had a roof and basic meals and hygiene facilities provided. But to have to endure the indefinite prospect of both, unless one is in a place where it is both possible and legal to live off the land, is in today’s society both inhuman and degrading.’
GS has been presented as a case ‘turning on its own facts’, and as with many such cases, in a sense that is true. But at a time of austerity, when care and other services are under severe pressure, and with the benefit cap depressing the basic amenities of existence, it is useful to remember that the ECHR sets minimum standards for human rights. A domestic bill of rights should be scrutinized carefully to ensure it does not lower those standards. Enforcement, however, is down to us.
Sally Robertson specialises in discrimination law and has a particular interest in disability and care issues. Please call the clerks on 0207 827 4000 for further information.