The Court of Appeal has ruled that a 42% reduction to a disabled man's care package was lawful. Luke Davey is 41 and has high support needs, including needing assistance for all personal care. Luke's "devoted" team of 7 carers support him, including his sister, sister-in-law and parents, some of whom are paid to provide his care. Luke said the reduction in the care package would put his well-being at risk as he would have to spend more time alone and may result in him losing his established care team of 18 years. Luke's was the first case to test out the duty in the Care Act to promote well-being, being the first to reach the Court of Appeal since the Act became law in 2015. But the court decided that the council had not acted unlawfully in reducing Luke's care package.

I was invited to speak about the human rights issues of Luke's case on BBC radio. You can listen again to the radio piece on BBC 3 Counties Radio (you need to register, but its a quick process, and scroll through to 2hours 47mins for the start of my interview). Although the case had been taken under the Care Act, there are human rights issues at stake in these type of cases, and in the wider question about cuts to care packages.

Austerity

The change in Luke's care package came about because of the closure of the Independent Living Fund. In these times of austerity, services are being stretched and local authorities are having to make very difficult decisions about how to spend scarce resources. The Human Rights Act - the law protecting our rights in the UK - sets minimum standards for our public services, below which no-one should fall. The Human Rights Act gives public officials a framework, to help them make difficult decisions in their everyday work. For example, there are some rights that involve a balance, like the right to respect for private life (which protects our well-being), where resources can be taken into account. Even so, the actions and decisions of public officials still have to be proportionate, and resources are not a 'trump card' for services.

There are other rights which can never be interfered with, where resources cannot be taken into account. Like the right to be free from inhuman or degrading treatment (protected by Article 3 in the Human Rights Act). This right protects us from really serious abuse or neglect and seeks to ensure no-one is put in a situation where their care becomes degrading. If cuts to care packages result in people feeling their care has become degrading, they can use this right to talk to their local authority.

Balbir did just that after a stroke meant she needed to use a wheelchair, and she couldn't access the top floor of the house which she shared with her two teenage sons. The council told her to use her living room as her bedroom and bathroom, using a commode and having strip washes. She lived that way for a year before writing to her council, with the support of an advocate BIHR had trained, explaining how she found this degrading. The council came back to carry out another assessment and were able to convert Balbir's downstairs cupboard into an accessible bathroom. This made Balbir's life much more bearable.

Being pro-active

Balbir's story is a good example of what action public officials can take to ensure people's rights are protected, even with limited resources. But the right to be free from degrading treatment also comes with a 'positive duty', which says that public officials have to act to protect this right once they know it is at risk. Services shouldn't be waiting until people are in crisis to act. Using a human rights approach also means involving the person in decisions about their care and treatment. This is key to respecting people's autonomy (also part of the right to respect for private life) but also key to avoiding disagreements and breakdowns in care arrangements.

Our work with public services shows that using a human rights approach leads to better involvement of people in their care and treatment, better decision making and better outcomes. For example, when a hospital decided to stop providing incontinence pads for Lynne, who has a learning disability, her advocate created a short storyboard to talk through the issue with Lynne and explain about her rights. Lynne was pleased someone had understood how she felt and agreed that the advocate could discuss her rights with the hospital. As a result, the hospital re-instated the use of incontinence pads so that Lynne would not face hours of discomfort and embarrassment each night.

Carers have rights too

Some of Luke's carers were family members he paid to provide this care, and of course they have rights too. Carers, whether paid or not, have a right to well-being (protected by Article 8 in the Human Rights Act). If cuts to care packages mean that carers are asked to provide more care under more difficult circumstances and they find themselves stretched, this could raise issues about their own well-being as well as the rights of the person they care for. This leads on to the wider issues about the value we place on such work.

Value of care work

As resources become more scarce and as services become more stretched, we have to ask ourselves what kind of value we - as a society - place on care work. Carers and care workers are doing vital work to ensure the people they care for can live with dignity, respect and can participate in the life of their community. This is human rights work in action and decisions about cutting care packages need to carefully consider the impact this will have, to ensure we are not falling below those minimum standards.