The legal establishment and the "right" to Independent Living

[Update 01/08/2012: Neil Crowther drew to my attention that a subsequent case relating to housing benefit, Burnip v Birmingham City Council & Anor (Rev 1), rejected the approach of the court in NM v Islington towards the CRPD, discussed below.  In Burnip the court held that the CRPD was a legally binding treaty, and if there was any uncertainty in how domestic anti-discrimination laws should be interpreted, he would use the CRPD as an aid to interpretation.  The ruling in Burnip is reassuring for supporters of the CRPD, but less reassuring are the efforts of the government's own counsel to attempt to marginalise the CRPD's relevance by reference to its maturity and chronology (see paragraphs 19-22).  It seems extraordinary, and rather depressing, that a government should seek to distance itself in this way from a treaty that it has itself ratified!]

It's sad but ironic that the day before the Joint Committee on Human Rights (JCHR) launched its report on the rights of disabled people to independent living under Article 19 of the Convention of the Rights of Disabled Persons, the legal establishment confirmed that it was going to ignore the most important treaty on human rights for disabled people for a bit longer.  In R (NM) v London Borough of Islington & Ors [2012] the claimant was in prison and had "significant learning disabilities" [2], and two councils were squabbling over who would have to assess and meet his community care needs when he came up for parole.  NM had sought judicial review of Islington's refusal to conduct a community care assessment under s47 NHS and Community Care Act 1990, and they were refusing on grounds that he was not 'ordinarily resident' in Islington.  He failed in his claim, and I won't discuss the detail of the court's analysis of domestic community care law here (although Allan Norman of Celtic Knot has done a great job of that here and pointed out the flaws and worrying consequences of the ruling).  What is interesting is that the claimant had hoped to rely in part on Articles 19 and 26 CRPD - the right to independent living (19) and the right to habilitation and rehabilitation (26).  From paragraphs 98-107 the court considers whether the CRPD can be relied upon in domestic courts and concludes it cannot because: