The Weekly Round-Up: Amnesty unimpressed and government care home guidance “grossly discriminatory”

12 April 2021 by Byul Ryan-Im

In the news:

On Wednesday, Amnesty International released its 2020/21 report on the state of the world’s human rights.  Amnesty’s UK director, Kate Allen, also called for an inquiry into the government’s handling of the pandemic and said “the government is now shamefully trying to strip away our right to lawfully challenge its decisions, no matter how poor they are.”  The report highlighted human rights concerns related to the government’s response to COVID-19, including health, immigration, domestic abuse and housing.  There were also concerns around police conduct around racial discrimination and excessive use of force against protesters; during the first national lockdown in May, 10,000 of 43,644 recorded stop and searches conducted against young black men.  Several legal developments were criticised for falling short of human rights standards, including the Immigration Act, the Gender Recognition Act, the Domestic Abuse Bill, the Counter-Terrorism and Sentencing Bill, the Overseas Operations (Service Personnel and Veterans) Bill, which would create a “presumption against prosecution” for members of the British Army accused of overseas crimes, including torture, committed more than five years earlier.

In other news:

• The British Institute for Human Rights last week published two resources on human rights and Covid-19 vaccines. A guide to the human rights considerations related to restraint, capacity, mental health & vaccine passports, and a summary of three Court of Protection cases involving best interest decisions regarding the Covid-19 vaccine.
• Solicitors from Leigh Day are representing the charity John’s Campaign in a challenge to the latest guidance to care homes from the Department of Health and Social Care (DHSC).  They say a blanket ban on visits out of care homes for residents over 65 is “grossly discriminatory, harmful and wrong”, and is unlawful given the universal requirement for individual risk assessments under the Equality Act 2010, Human Rights Act 1998 and Care Act 2014.  They also question the necessity of a requirement that all residents who are able to leave the care home self-isolate for 14 days upon return.  John’s Campaign co-founder, Julia Jones, said the requirement was “almost ludicrous if it were not so unkind”.  Previous threats of legal action by John’s Campaign have resulted in amendments to DHSC guidance ensuring individualised risk assessments are required for all decisions concerning family visits to residents.  This campaign calls for a similar universal requirement for individual risk assessments to inform decisions regarding outside visits, regardless of age.

In the courts:

Elliott v Dorset County Council [2021] UKEAT 0197_20_0904 – the Employment Appeals Tribunal (EAT) delivered judgment on an appeal against a decision that the Claimant in the Employment Tribunal was not disabled within the meaning of section 6 of the Equality Act 2010.  The Claimant was diagnosed with Autism Spectrum Disorder and Asperger’s Syndrome, which according to his GP’s and his own assessments, caused him “…difficulty processing other people’s emotions; …finding it difficult to cope with changes of plan; black and white thinking, and taking people very literally; and, procedural compliance and dislike for any digression from rules, established policy or procedures.”  Despite accepting this evidence, the Employment Judge concluded the Claimant “was not disabled, because his impairment did not have a ‘substantial’ adverse impact on his ability to carry out day-to-day activities”. 

The EAT (at paragraph 82) held that the Employment Judge had erred in law for the following reasons.

1. She erroneously focussed on those day-to-day activities that the Claimant could do, instead of those, including work activities, that he “could not do, or could only do with difficulty”.
2. She excessively focussed on the Claimant’s coping strategies, without considering whether they might break down in certain circumstances.
3. In considering whether the Claimant’s impairment had “substantial” adverse effects she erroneously compared the Claimant to the general population, rather than to the Claimant as he would be without his impairment.
4. She did not focus on the relevant issues in the underlying claim that the Claimant’s condition affected his ability “to deal with changes of procedure” and “communicate properly with his line manager”.

The EAT considered that the issue of the Claimant’s disability claim should be determined on remission to a new tribunal.

On the UKHRB:

• Caroline Cross looks at the importance of sound legal basis for fresh inquest requests through the lens of Farrell v HMC for North East Hampshire [2021] EWHC 778 (Admin)
• Rosalind English considers the value of companion animals under the Consumer Rights Act in Pendragon v Coom [2021] EW Misc 4 CC (22 March 2021)
• In the latest episode of Law Pod UK, 1 Crown Office Row’s Alasdair Henderson joins Rosalind English to discuss the UK Supreme Court’s ruling that Uber drivers meet the statutory definition of being ‘workers’ for Uber, and are as such entitled to protections under employment law.