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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 9985
Experience:  30 years as a practising solicitor.
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Can section 8 be used to challenge a person being movedover100

Resolved Question:

Can section 8 be used to challenge a person being movedover100 miles away from home and established family relationships due to lack of local provision to meet their assessed need?
Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Thank you for your question.
Do you mean Article 8 as in the right to a private and family life?
Customer: replied 2 years ago.

Yes, my partner has been known to social services since April 2013 and funding for a full time residential placement with 1-1 at nights was approved. He was accessing the only nursing home on Skye for day care and respite. Due to staff shortages/novacancy they have not been able to accommodate full time placement, and have had to cancel 8 days booked respite end September.

I have now had to advise that the situation is affecting my health, on top of caring in order to access the day care I have been undertaking 360 miles a week transporting to and from home am/pm three days a week, over ten hours travel time and at a cost of £40 a week. I did this to enable him to get to know the home/staff as part of what I hoped would be a gentle induction.

Having reached a crisis due to my health and well being I advised an urgent full time placement needed, now advised no vacancies in The Highlands and alternatives are Dundee or Glasgow. I am awaiting confirmation today as to which one.

Expert:  JGM replied 2 years ago.
I have done you a brief note on Article 8 and you will see that the state should be respecting the right to private life subject to certain limitation. In this case they will argue that there is not the funding to provide the care that you seek.
However, this is probably the easy way out for them. I think you should be contacting your MP, MSP and Councillor about this before considering an application to the court for Judicial Review which would be your ultimate remedy.
Here is my note:
Everyone has the right to respect for his of her private and family life, home and correspondence. This right is subject to proportionate and lawful restrictions.
Article 8 is a broad-ranging right that is often closely connected with other rights such as freedom of religion, freedom of expression, freedom of association and the right to respect for property.
The obligation on the State under Article 8 is to refrain from interfering with the right itself and also to take some positive measures, for example, to criminalise extreme breaches of the right to a private life by private individuals.
Private life
The concept of a right to a private life encompasses the importance of personal dignity and autonomy and the interaction a person has with others, both in private or in public.
Respect for one’s private life includes:
• respect for individual sexuality (so, for example, investigations into the sexuality of members of the armed forces engages the right to respect for a private life);
• the right to personal autonomy and physical and psychological integrity, i.e. the right not to be physically interfered with;
• respect for private and confidential information, particularly the storing and sharing of such information;
• the right not to be subject to unlawful state surveillance;
• respect for privacy when one has a reasonable expectation of privacy; and
• the right to control the dissemination of information about one’s private life, including photographs taken covertly.
Family Life
Article 8 also provides the right to respect for one’s established family life. This includes close family ties, although there is no pre-determined model of a family or family life. It includes any stable relationship, be it married, engaged, or de facto; between parents and children; siblings; grandparents and grandchildren etc. This right is often engaged, for example, when measures are taken by the State to separate family members (by removing children into care, or deporting one member of a family group).
Respect for the home
Right to respect for the home includes a right not to have one’s home life interfered with, including by unlawful surveillance, unlawful entry, arbitrary evictions etc.
Respect for correspondence
Everyone has the right to uninterrupted and uncensored communication with others – a right particularly of relevance in relation to phone-tapping; email surveillance; and the reading of letters.
Article 8 is a qualified right and as such the right to a private and family life and respect for the home and correspondence may be limited. So while the right to privacy is engaged in a wide number of situations, the right may be lawfully limited. Any limitation must have regard to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole.
In particular any limitation must be:
• in accordance with law;
• necessary and proportionate; and
• for one or more of the following legitimate aims:
o the interests of national security;
o the interests of public safety or the economic well-being of the country;
o the prevention of disorder or crime;
o the protection of health or morals; or
o the protection of the rights and freedoms of others.
Customer: replied 2 years ago.

Can you refer me to any examples of judicial review relating to any challenges to distant residential placements.

Also funding including 1-1 has been approved, the problem is that there are no local resourcesat all on the Isle of Skye except one nursing home which does not even have an emergency respite bed.

I have raised three FOI enquires with regards ***** ***** unmet resource needs via the 'What do they know' site and questioned commissioning/procurment of local services as required in the Scotland Dementia Strategy.

Expert:  JGM replied 2 years ago.
I will see if there are any past Judicial Review cases involving the delivery of health care. This will take a little time.
In the meantime can you tell me what it is you want to happen if there are no local resources in existence?
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 9985
Experience: 30 years as a practising solicitor.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 2 years ago.

I have an Honours Degree in Social Policy and this assists me in looking at legislation and good practice guidelines. I have 'flagged' up through FOI requests the lack of local resources to meet the needs of people on the Isle of Skye, in a number of cases these resources stated in national standards are not being provided. This means that key aspects of the Scotland Dementia Strategy such as ensuring meaningful relationships are maintained, person centered plnning etc is not being met.

I will be making formal complaints as I feel very strongly that there are many people in a similair situation with no one to fight their cause. I am looking for tangible evidence where the actions or non actions of these statutory services are infringing the human rights of this very vulnerable group of people.

If these major shortfalls are not raised in the public arena nothing will be done. I have the knowledge to evidence where legislation/good practice documents are not being implemented but I know factual examples of case law that support an arguement is a good ace up the sleeve.

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