and Alice Irving, barrister, research assistant to Steve Broach.
The current public health crisis has affected us all. But for disabled people and those with mental health conditions, or those caring for and supporting them, there have been unique fears, challenges and difficulties.
You don’t need to look far find examples of disabled people speaking up about the potential impacts on them of new government measures being adopted. For example, there was this recent coverage of how guidelines for doctors on how to prioritise treatment, should the NHS become overwhelmed, meant that many disabled people would not receive treatment.
That is why it is good news that changes have been secured to some government policies that had a disproportionate effect on disabled people and people with mental health conditions.
Changes to lockdown policy for disabled people and those with mental health conditions
A recent example involves two families with autistic children (the claimants), working with lawyers (Bindmans LLP and Steve Broach at 39 Essex Chambers, one of the authors of this article), to secure a change to the government policy that people should only leave their homes once a day for exercise. The policy was amended to allow people with a specific health condition to exercise more often, or to travel away from their home to exercise, if it is necessary for them to do so.
This is an important change in the policy. Adherence to lockdown and social distancing rules is essential to ensuring we, as a country and community, come through this crisis. However, while it is hard for all of us to abide by these rules, they do not impact on all people equally. Seeking recognition of this is not a case of disabled people using an excuse to avoid adherence to lockdown requirements. It is a recognition that, for some people, not being able to go outside more than once a day is not merely unpleasant but has a potentially significant impact on their health and wellbeing.
This is clearly illustrated in this statement from a parent of one of the claimants:
“Over the last couple of years, our autistic son has made huge strides self-managing his sensory, communication and health difficulties and asking for what he needs in order to be able to cope with them. These include long walks in the countryside, which he finds very relaxing and pleasurable from a sensory point of view, and being taken for drives in the car while listening to music with his dad.
"So when the lockdown was announced, we were worried that being limited to one outing a day in the local area would make it impossible for our son to deal with the situation and that this could lead to severe meltdowns. Having the guidelines clarified by the government has lifted a huge weight from our shoulders, and as a result, our son has been managing well with the limitations of the lockdown while maintaining social distancing.”
How the change was brought about
Bindmans LLP sent a letter to the Prime Minister setting out the circumstances of the claimants and their families. Their stories provided the context for legal arguments demonstrating that the blanket application of the government guidance to all citizens was unlawful. First, it was said that the guidance did not in fact reflect the law, as set out in the Coronavirus Regulations, which do not limit people to leaving the house for exercise once a day.
It was then argued that the policy was indirectly discriminatory and amounted to a failure to make reasonable adjustments, both breaches of the Equality Act 2010 (‘EA 2010’). The crux of these arguments was that the policy put disabled people at a particular disadvantage compared with non-disabled people. This is because disabled people are more likely to be particularly negatively impacted by a restriction on their access to outdoor spaces than members of the general population.
Further, it was possible for an exemption to be recognised in the policy for those with a disability-related need for further exercise. This would not significantly undermine the aim of protecting public health, as the exemption would only apply to a relatively small number of people. Given this, the failure to allow such an exemption could not be justified and was discriminatory. So too, the failure to allow such an exemption amounted to a failure to make a reasonable adjustment.
A more serious human rights discrimination
It was also argued that there had been a failure to discharge the Public Sector Equality Duty under the EA 2010, which requires public bodies, when exercising their public functions to have due regard to the need to eliminate discrimination (amongst other matters). Further, it was argued that there had been a breach of the claimants’ human rights. While the policy infringed on every citizen’s right to private and family life (Article 8 of the European Convention on Human Rights, ‘ECHR’), by restricting their autonomy, the policy more seriously impacted the rights of disabled people. Accordingly, this was a breach of Article 14 ECHR, which provides that, “the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground.” Finally, it was argued that the policy was “irrational”.
After receiving this letter, which threatened legal action if changes to the policy were not made, the government amended its guidance. While the main guidance still states that you should only leave the house for “one form of exercise a day” a new section was added entitled “Can I exercise more than once a day if I need to due to a significant health condition?” It is worth setting out this new section in full:
“You can leave your home for medical need. If you (or a person in your care) have a specific health condition that requires you to leave the home to maintain your health – including if that involves travel beyond your local area – then you can do so. This could, for example, include where individuals with learning disability or autism require specific exercise in an open space two or three times each day – ideally in line with a care plan agreed with a medical professional.
"Even in such cases, in order to reduce the spread of infection and protect those exercising, travel outside of the home should be limited, as close to your local area as possible, and you should remain at least two metres apart from anyone who is not a member of your household or a carer at all times.”
The way that the guidance was changed shows that disabled people and their families are not powerless, when a new policy rushed through by the government in response to the public health crisis fails to adequately consider their rights and needs. In this instance, two families with disabled children, working with lawyers, brought about meaningful and important change to a government policy. This will benefit disabled people nationwide.
Lawyers are continuing to partner with disabled people and their families, to safeguard the rights of disabled people in these difficult times.
Steve Broach is a barrister in public law at 39 Essex Chambers. He has particular interest and expertise in health, education and social care, with a focus on disability and children’s rights cases. Steve is co-author of Disabled Children: A Legal Handbook (Legal Action Group, Third Edition, 2019) and Children in Need: Local Authority Support for Children and Families (Legal Action Group, Second Edition, 2013).
Alice Irving is a barrister with a strong interest in public law. Before becoming a barrister, she was a law lecturer and anti-sexual violence campaigner. As well as studying law, she completed a degree in Community and Family Studies. She has also worked as a carer for adults with complex needs. She has a particular interest in advocating for the rights of those with disabilities.
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