Protecting the right of disabled people to stay in their own home (1)

Case name: EHRC v 13 Clinical Commissioning Groups

NHS Clinical Commissioning Groups (CCGs) are responsible for planning and commissioning healthcare in their local areas. A number of CCGs had policies which limited spending on continuing healthcare. It meant that disabled people with ongoing health needs risked being moved from their homes into residential care against their wishes. We believe this breaches human rights laws and began legal proceedings against the 13 CCGs with the most overly restrictive policies.

Legal issue

Are Clinical Commissioning Groups’ policies on restricting the cost of continuing health care lawful?

Background

NHS continuing healthcare policies in operation at a number of Clinical Commissioning Groups had capped the amount of money available for continuing healthcare. It risked disabled people with substantial ongoing health needs being moved from their homes into residential care against their wishes. We believe this would breach their rights under Article 8 of the Human Rights Act – the right to personal and family life – as well as the United Nation’s Convention on the Rights of Persons with Disabilities. We also think it breaks equality laws. We wrote to the CCGs advising that we were beginning Judicial Review proceedings that would challenge their continuing healthcare policies.

Why we were involved

It is our duty to uphold the Human Rights Act and we were concerned that a number of CCGs had put costs above the human rights of disabled people. Our aim in beginning Judicial Reviews was to make sure these discriminatory policies were changed and that in future CCGs would be mindful of the need to ensure cost-cutting doesn’t lead to human rights breaches.

What we did

We wrote to 13 CCGs advising them we were beginning Judicial Review proceedings. All of them accepted the failings of their continuing healthcare policies and agreed to revise them without the need for further legal action. We are continuing to monitor these CCGs to ensure they take the actions they have committed to.

What happened

Some CCGs have reviewed their policies and we have assessed them as being lawful. Others have chosen to adopt the NHS continuing healthcare framework instead of developing a unique policy. The framework protects equality and human rights. 

Who will benefit and how

The action we have taken has protected the rights of disabled people with significant ongoing healthcare issues. This group of people will not be subjected to moves that they don’t want as a result of cost-cutting. We also hope that thanks to the publicity surrounding our action, CCGs will in future give more consideration to human rights and equality laws when designing policies.