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R v East Sussex County Council and The Disability Rights Commission Ex Parte A, Queens Bench Division Administrative Court

14 March 2003
The issues

Health and safety – care workers – disabled persons – Manual Handling – Risk Assessment – a reasonable practicability.

The facts

An Application had been made for judicial review of the Local Authority’s Policy not to permit care staff to lift two of the Claimants manually. Both Claimants suffered from profound physical and learning disabilities and had greatly impaired mobility. Within the Application, a Trial was fixed as to the following issue namely:-

(i) The legality of the Application of the Local Authority’s general policy on manual lifting of disabled persons to the Claimants and;

(ii) The draft Protocols produced by the Local Authority.

The decision

1. The statutory regime was intended to avoid hazardous manual lifting insofar as that was reasonably practicable and insofar as it was in the best interests of the disabled person, including matters relating to his dignity, his independence and his human rights.

2. The statutory regime also recognised that it was not always reasonably practicable to avoid a particular risk or to reduce it as much as might otherwise be appropriate.

3. In assessing what was reasonably practicable, the relevant factors were:-

a. The possible methods of avoiding the risk;
b. The context;
c. The risk to the employee;
d. The physical, emotional, psychological and social impact upon the disabled person.

The employer had to balance the impact on both the carer and the disabled person of the various alternatives that had been assessed.

4. If striking the balance it came down in favour of manual handling, then the employer had to make a risk assessment and take all steps to minimise the risks of the manual handling operation.

5. At this point the Local Authority had not yet completed its assessments. It was not for the Court to say to the Local Authority what assessments to make. It could assist by identifying the relevant legal principles. Since the assessments had not been completed, the Application was premature.

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