A compassionate ruling
The High Court relied on human rights legislation to overturn a decision on end-of-life care. David Renton, barrister at Garden Court Chambers, explains
A recent decision of the High Court on eligibility for residential community care shows a greater willingness on the part of the courts to base a right to residential accommodation on the terms of the European Convention on Human Rights.
The claimant, Mr De Almeida, was born in Portugal, but left that country many years ago. Having lived in the UK since 2008, Mr De Almeida had contracted hepatitis C and full-blown Aids. He suffered in addition from skin cancer and depression.
Mr De Almeida worked until he was too ill to continue, and was then housed in a 400-room hostel. After his funds were exhausted, he applied for residential accommodation as a person in need of care and attention by reason of illness (under section 21 of the National Assistance Act 1948). At his last community care assessment by Kensington and Chelsea Council, in October 2011, his life expectancy was just six months.
As an European Economic Area national who was unable to work and lacked funds, Mr De Almeida could be entitled to accommodation only if the refusal of such services would be a disproportionate breach of a convention right. Kensington and Chelsea offered Mr De Almeida resources to return to Portugal, but refused a residential assessment.
Mrs Justice Lang was critical of several mistakes made by the local authority. One error was its view that Mr De Almeida had no need of care and attention. She found that Mr De Almeida’s needs included shopping, cooking, laundry, assistance with showering, and rising from low surfaces such as toilets.
The local authority’s evidence was that Mr De Almeida’s needs fluctuated and that at times he was capable of leaving his accommodation himself and did not need assistance. The judge held that this was usual in long-term illness, and did not take Mr De Almeida’s case below the threshold.
The authority gave evidence that Portugal, another EEA country, had its own health and social care system.The judge found that Portugal’s community care system took considerable time to access, and required applicants to make considerable private contributions, which would have been beyond Mr De Almeida’s means.
A further significant feature of the case was that Mr De Almeida was in the final phase of Aids: sending him to Portugal would deprive him of the opportunity to die with dignity with friends. Accordingly, the proposal to return Mr De Almeida to Portugal was a disproportionate infringement both of his article 3 right to protection from inhuman or degrading treatment, and his article 8 right to respect for home life.
The case is a salutary warning to authorities not to rely on relocation in cases where a claimant has a medical condition giving rise to a need for care.