Physical Health in UK Law

There are great dangers in a court grappling with issues such as those that Munby J has addressed when these are divorced from a factual context that requires their determination. The danger is that the court will enunciate propositions of principle without full appreciation of the implications that these will have in practice, throwing into confusion those who feel obliged to attempt to apply those principles in practice.

Who were the "others to whom that reason does not or would not apply"? This had been considered in detail by Mummery LJ giving judgment in the Court of Appeal in Clark v Novacold [1999] ICR 95. He illustrated the two competing constructions by taking the example of a blind man who wished to take his guide dog into a restaurant which had a "no dogs" rule. Should the comparison be with an able-bodied man who wished to take his dog into the restaurant?

But when it does arise then it is clear that a shortage of resources will not excuse a failure in the performance of the duty.

Decisions both in our courts and in the ECtHR therefore combine to lead me to the confident conclusion that, as a severely disabled child in need of lengthy in-patient hospital treatment, Cameron had a status falling within the grounds of discrimination prohibited by article 14. Why should discrimination (if such it be) between disabled persons with different needs engage article 14 any less than discrimination between a disabled person and an able-bodied person?

I am not saying that there is in law any presumption that mentally incapacitated adults are better off with their families: often they will be; sometimes they will not be.

It does not seem to me that other cases provide the answer to the question in this case. Every case is dependent on its own facts and I would repeat what I said in connection with the issue of access to and manoeuvrability to all parts of James' new home (see paragraph 234 above), namely, that the decision in this case should not be seen as a green light for claiming a home-based pool in every other case.

I fully accept that, under the further framework, if the Commissioners have this power, so has each of the many hundreds of relatively junior adjudication officers. I do not, however, understand the logic of the distinction between questions of"existence"and questions of"reasonableness". One reason at least for setting aside subordinate legislation upon grounds of" Wednesbury unreasonableness"would be that Parliament never intended the regulation-making power to be exercised in that way.