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

Regulation 4 of the Manual Handling Operations Regulations 1992 creates a risk-reduction regime, not an absolute no-risk or no-manual-lifting rule. Hazardous lifting must be avoided so far as reasonably practicable; where it cannot be avoided, the employer must reduce the risk to the lowest reasonably practicable level.

In care of severely disabled people at home, reasonable practicability requires an individual, user-focused assessment. It must balance the risks to carers against the disabled person’s dignity, autonomy, physical and psychological integrity, wishes, quality of life and participation in community life. A blanket prohibition on manual lifting is likely to be unlawful. The local authority remains the primary decision-maker, while the court’s function is supervisory review.

The claimants were two profoundly physically and intellectually disabled sisters and their carers, their mother and stepfather. They challenged East Sussex County Council’s approach to moving and lifting them, alleging that its manual-handling policy and proposed care arrangements were unlawful.

The Council’s revised manual-handling code had been accepted as lawful in general terms. The dispute therefore concerned its application to the sisters’ particular circumstances, including daily care, emergencies, distress, bathing, shopping, swimming and other community activities. The court was asked to address the governing principles before the Council and an independent handling adviser had completed the necessary assessments and protocols.

1. Regulation 4. Regulation 4 of the Manual Handling Operations Regulations 1992 applies only to hazardous lifts involving a real risk of injury. It establishes a hierarchy: avoid hazardous manual handling so far as reasonably practicable; assess unavoidable operations; and reduce the risk to the lowest reasonably practicable level. It is not a regime requiring elimination of every risk.
2. Assessment and balance. Reasonable practicability requires consideration of available methods, the frequency and duration of lifting, the likelihood and seriousness of injury to the particular carer, and the physical, emotional, psychological and social effects on the particular disabled person. The assessment must be user-focused, form part of care planning, and take account of wishes and feelings, autonomy, dignity, Convention rights and access to community life.
3. The disabled person’s rights do not automatically prevail over those of carers, and the carers’ rights do not automatically prevail over those of the disabled person. The competing interests must be balanced proportionately. Severe disability may give enhanced weight to dignity and participation interests, but carers cannot be required to accept unacceptable risk or heroic self-sacrifice.
4. A policy imposing a blanket prohibition on manual lifting, or permitting it only where life is at risk or mechanical handling is physically impossible, is likely to be unlawful. The availability of a hoist does not necessarily require its use. Manual lifting may be required where necessary to protect dignity, comfort, quality of life, community participation or the disabled person’s immediate safety.
5. The Council, not the court, had the primary responsibility for making the assessments and preparing sufficiently particular protocols, including foreseeable emergencies and episodes of distress or resistance. The application was premature while that process remained incomplete. Any later challenge would be by judicial review, potentially applying heightened scrutiny where Convention rights were engaged.

First-instance judicial review proceedings. The court gave guidance on the legal principles and left East Sussex County Council to complete the assessments and handling protocols, subject to any later judicial review challenge.