A & Ors, R (on the application of) v East Sussex County Council & Anor

The court addressed the legality of a local authority’s manual handling policy in the context of care for profoundly disabled adults. It held that East Sussex County Council’s revised "Safety Code of Practice: Manual Handling" (adopted 14 June 2002) is lawful as a general policy under domestic health and safety law and compatible with human rights obligations. The judge set out the statutory framework (notably the Manual Handling Operations Regulations 1992 and the Management of Health and Safety at Work Regulations 1999) and emphasised the duty on employers to avoid hazardous manual handling so far as is reasonably practicable and otherwise to minimise risk.

The court explained that in the particular context of personal care in the home some manual handling is an inherent feature of the work so the proper task is a balancing exercise between the carer’s health and safety and the disabled person’s interests, including Convention rights (articles 3 and 8) and dignity. The judge formulated a structured approach to assessment and reasonable practicability, stressing that the primary function of making assessments and producing protocols rests with the authority (ESCC) and not the court.

Because the independent handling adviser’s draft protocols were incomplete and dynamic, the court declined to subject them to final judicial determination, gave detailed principles to guide ESCC and directed ESCC to complete assessments and protocols. Claimants retain the right to challenge completed protocols by judicial review.

Background and parties: A and B are adult sisters with profound physical and learning disabilities who live at home with their mother X and stepfather Y. ESCC is the local authority responsible for providing community care under the National Assistance Act 1948, the Chronically Sick and Disabled Persons Act 1970 and the National Health Service and Community Care Act 1990. The Disability Rights Commission appeared as an interested party.

Nature of the application and relief sought: The claimants sought, among other relief, quashing of ESCC assessments and care plans dated 28 September 2001, a declaration that ESCC’s alleged blanket "no manual lifting" policy was unlawful, and a mandatory order compelling provision of services in accordance with earlier independent care plans. The proceedings concerned whether ESCC lawfully refused manual lifting and whether staff could be provided by a user independent trust (the latter was decided separately).

Issues framed:

• Whether ESCC’s general manual handling policy (the Code) was lawful.
• Whether the application of that policy to the specific lifts and the draft handling protocols prepared by an independent adviser (Mrs Bosley) was lawful — the "manual handling issue".

Evidence and procedural history: The court heard extensive evidence including occupational therapy risk assessments, reports by an independent social worker, witness statements from ESCC officers, statements from carers and the DRC, and expert manual handling reports. Wilson J had previously approved ESCC’s revised Code in principle and directed appointment of an independent handling adviser; Mary-Jayne Bosley prepared draft handling protocols which were incomplete and preceded further assessments and incidents.

Court’s reasoning and legal analysis: The judge set out the domestic statutory framework (Health and Safety at Work etc Act 1974; The Manual Handling Operations Regulations 1992; The Management of Health and Safety at Work Regulations 1999) and relevant European instruments. He reviewed domestic case-law on regulation 4 of the 1992 Regulations and explained the hierarchy of measures: avoid hazardous manual handling where reasonably practicable; where not, assess and reduce risk so far as reasonably practicable; and provide information and training.

The court treated the Convention (especially articles 3 and 8) and the Charter as important considerations informing the balancing exercise. It held that article 8 protects dignity and the right to participate in community life and can impose positive obligations on the State; article 3 and, in some circumstances, article 2 may also be engaged. However, these rights must be balanced against carers’ health and safety rights. The judge emphasised that manual handling is not inherently dignified and hoisting is not inherently undignified; context and individual assessments are decisive.

Practical outcome and directions: The court concluded that ESCC’s revised Code (14 June 2002) is lawful. The principal dispute concerned the application of that Code and the incomplete draft protocols. Because the independent adviser’s protocols were draft, dynamic and incomplete (and some relevant incidents and assessments post-dated them), the court declined to make final orders on the protocols. Instead the judge articulated a detailed framework of principles (assessment, reasonable practicability, balancing carers’ safety and service users’ dignity and Convention rights, documentation and protocols, emergency situations, user-led assessment and interpreting incapacitated persons’ wishes) and directed ESCC, assisted by the independent adviser, to complete the assessments and written handling protocols. The judgment preserved claimant rights to pursue judicial review of any inadequate completed protocols and explained the appropriate standard of review and margin of appreciation to be afforded to ESCC.

First instance: The court held that East Sussex County Council’s revised Safety Code of Practice: Manual Handling (adopted 14 June 2002) is lawful in principle. The judge declined to quash ESCC’s care plans or to make final orders about the draft handling protocols because the protocols were incomplete and dynamic. He set out detailed legal principles and a framework for assessment under the Manual Handling Regulations and human rights law, directed ESCC (with the independent handling adviser) to complete suitably documented handling protocols covering all foreseeable situations, and indicated that the claimants may challenge any inadequate completed protocols by judicial review. Rationale: policy lawful; specific application premature and primarily a matter for ESCC as employer and decision-maker, subject to court review.