CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 avril 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                      AS TO THE ADMISSIBILITY OF                         Application No. 31024/96                     by Joy WILLSHER                     against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 9 April 1997, the following members being present:             Mrs. J. LIDDY, President           MM.   M.P. PELLONPÄÄ                E. BUSUTTIL                A. WEITZEL                C.L. ROZAKIS                L. LOUCAIDES                B. MARXER                B. CONFORTI                I. BÉKÉS                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL                M. VILA AMIGÓ           Mrs. M. HION           Mr.   R. NICOLINI             Mrs. M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 10 January 1996 by Joy WILLSHER against the United Kingdom and registered on 16 April 1996 under file No. 31024/96;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen, born in 1949 and resident in Port Talbot. She suffers from a congenital brain abnormality, known as phenyl ketonuria. In the proceedings before the Commission she is represented by Mrs. Beryl J. Power, her sister, who is her nearest living relative and who, in turn, has instructed Mr. Luke Clements, a solicitor practising in Hereford.        The facts of the case, as they have been presented by the applicant, may be summarised as follows:        The applicant, due to her mental condition, cannot live on her own. For many years she lived with her mother. In 1978 the Protection Court appointed the applicant's sister as receiver in respect of specified matters relating to the applicant's financial affairs.        Since 1989 the applicant lives at 5 Toronto Avenue in accommodation secured by the Social Services Department of the West Glamorgan County Council, pursuant to their duty under section 21 of the National Assistance Act 1948. The house at 5 Toronto Avenue is managed by an independent industrial and provident society.        On 21 June 1994 the applicant's sister made a formal complaint to the County Council, pursuant to the statutory complaints procedure established under the National Health Service and Community Care Act 1990. She complained that the applicant was being allowed out of the house unsupervised, that male carers were involved in the applicant's dressing, using the toilet and other personal hygienic tasks and that the applicant had gone on holiday abroad with only a male carer as escort. In a report dated 14 September 1994 the Council rejected the complaints. The applicant's sister appealed. On 14 February 1995 the Review Panel found that at no time had there been any suggestion that the applicant might have been subjected to any kind of abuse. It also rejected the complaints about invasion of the applicant's privacy and considered that the level of involvement of male carers did not raise any serious problems.        In February 1995 two members of staff at 5 Toronto Avenue complained to the society which managed the house over the way that residents had been treated by a male care assistant, Mr. C.M. During a telephone conversation with an officer of the Social Services Department of the local Council, the husband of the applicant's sister was informed that there were allegations concerning the manner in which C.M. had treated the applicant and, in particular, one incident involving him raising the applicant's dress. He was also informed that there were allegations similar to the concerns over personal privacy earlier raised by the applicant's sister and an allegation that on one occasion the applicant had been slapped by another care assistant. Moreover, he was told that the social services of the Council were treating the case as one of suspected abuse.        The County Council instructed Mr. S.H., one of its social workers, to carry out an inquiry into the allegations. As a result, a number of potential witnesses were interviewed and a report was prepared by the social worker in question. The matter was also referred to the police and an investigation was carried out by police officer T.        On 16 February 1995 the applicant's sister and the sister's husband attended a case conference at which the social worker who had carried out the inquiry listed a number of allegations including an allegation that C.M. had a predilection for sniffing the buttocks of female residents. He also stated that there were allegations concerning lack of privacy of female residents similar to the concerns earlier raised by the applicant's sister. Following the meeting, new guidelines as to the employment of male staff at 5 Toronto Avenue were agreed.        A second case conference was held on 15 May 1995 at which police officer T. reported on the state of his investigations, which had not been completed, because he still had to interview two members of staff of 5 Toronto Avenue.   According to the police officer, male members of staff were present during female residents' using the toilet and bathing, but there was no evidence that they were involved in these processes. However, any allegation of sexual abuse could easily be supported by the existing working practices at 5 Toronto Avenue. Moreover, it had been confirmed that it was C.M.'s practice to sniff the backside of residents, male and female. C.M.'s behaviour was only just within the bounds of being non-criminal. There existed information that a pornographic book had been brought into the house and information that isolated incidents of bullying and verbal abuse had occurred. Allegations that drugs had been used on the premises by the previous home-leader had not been substantiated, although staff seemed aware that she used drugs at home. On the whole, police officer T. was of the view that the investigations carried out so far indicated that nothing had happened that was sufficient to make a case that a criminal offence had been committed.        The police officer also discussed the slapping incident with the applicant's sister and the sister's husband who accepted that the circumstances indicated that a criminal prosecution was inappropriate. Finally, the police officer indicated that his investigation would continue probably for two additional weeks. The representative of the social services of the County Council promised a multi-strand, comprehensive review and the society managing the house was invited to take appropriate disciplinary measures. When the husband of the applicant's sister requested a copy of the social worker's report, he was told that advice would be taken on the matter.        On 14 June 1995 the applicant's sister and the sister's husband requested disclosure of the social worker's papers from the County social services. On 4 July 1995 the social services replied that the request was premature in the light of the Crown Prosecution Service's ongoing consideration of the matter. The social services also indicated that they would have to be satisfied that the applicant's sister and the sister's husband had the capacity to request the information in question.        In early July 1995 the police officer in charge of the investigations told the husband of the applicant's sister that the latter would find the social worker's report very useful in his discussions with the social services.        On 16 August 1995 the applicant's sister and the sister's husband asked the social services to indicate who would be the appropriate person for making a request for disclosure. On 25 August 1995 the social services replied that no one was capable of requesting such disclosure. On 1 September 1995 the applicant's sister and the sister's husband were informed that the Crown Prosecution Service had decided that no criminal proceedings would be instituted.        On 15 September 1995 the applicant's sister and the sister's husband renewed their request for information on the social worker's inquiry. On 5 October 1995 the County Council indicated that it was not prepared to disclose the social worker's report because it contained personal information about other residents and was not part of the applicant's file. On 10 October 1995 the applicant's sister and the sister's husband reiterated their request and also asked to have access to the applicant's personal file. On 23 October 1995 the Council clarified their position, indicating that they objected to disclosure of the applicant's personal file on the basis that, in the absence of an order from the Court of Protection, the applicant's sister and the sister's husband had no standing to request it. They also objected to disclosure of the social worker's report on the basis that it was not part of the applicant's file and remained property of the Council.        On 25 October 1995 the applicant's sister and the sister's husband sent the County Council a copy of the 1978 order made by the Protection Court. On 31 October 1995 the Council replied that the order did not give the applicant's sister the power to have access to the applicant's files.        On a date which has not been specified, the applicant's sister and the sister's husband obtained a copy of a report by the County social services dated August 1995 in which it was indicated that the social services were in possession of various documents relating to the inquiry into the allegations concerning 5 Toronto Avenue. In the same document it was further indicated that there was an inference that sexual abuse or inappropriate behaviour might have taken place on a night when the applicant had reportedly complained that she had been kept awake by a member of the staff.        A third case conference took place on 20 October 1995. No further relevant information was revealed.        On an unspecified date, the applicant obtained a legal aid certificate, through her sister, in relation to proposed proceedings for compensation for negligence against West Glamorgan County Council and/or the society managing 5 Toronto Avenue. The certificate was limited to obtaining further evidence and thereafter counsel's opinion as to the merits and quantum.        On 11 December 1995 a barrister advised the applicant on the existence of a domestic remedy to challenge the refusal of the County Council to disclose her file and the papers relating to the social worker's inquiry. Counsel considered that there were two potentially relevant routes, an application for pre-trial discovery and a request under the Access to Personal Files (Social Services) Regulations 1989, which had been enacted pursuant to power conferred by the Personal Files Act 1987.        In the barrister's opinion, a pre-action application for discovery would not succeed because there was no evidence of any personal injury having been suffered by the applicant and no evidence of any personal injury having been suffered as a result of any act or omission on the part of the County Council or the society managing 5 Toronto Avenue. As a secondary consideration, the barrister pointed out to the possibility that the respondents in the application would assert public interest immunity in respect of the documents in issue.        Insofar as the Personal Files Act 1987 and the Access to Personal Files (Social Services) Regulations 1989 were concerned, the barrister considered that there was no prospect of a successful claim for judicial review of the County Council's refusal to disclose the information requested. The statutory instruments in question made no provision concerning situations where information held by a public authority relates to an individual who lacks the capacity to make a request. The County Council had applied the correct legal tests and, in other respects, had not acted in any way amenable to judicial review.        However, the barrister considered that there was an outstanding question as to whether the Court of Protection could empower the applicant's sister to seek access to the applicant's personal information on her behalf, as envisaged in a circular from the Welsh Office providing guidance on the Access to Personal Files Act 1987 and the Access to Personal Files (Social Services) Regulations 1989.        On 28 February 1996, the applicant's sister sought an order from the Court of Protection empowering her to receive the information in question. On 25 March 1996 the Court of Protection authorised the applicant's sister on the applicant's behalf to inspect and receive copies of the papers and documents and other information on the personal file held by the Social Services Department of West Glamorgan County Council and to receive on the applicant's behalf a copy of the Social Services report prepared as a result of an investigation carried out by Mr. H in respect of 5 Toronto Avenue.        On 17 July 1996   the Neath Port Talbot County Borough Council, to which responsibility over the applicant had passed due to Local Government reorganisation, informed the applicant's sister that she could have access to information in the applicant's file "insofar as such information could be disclosed to (the applicant) herself under the Access to Personal Files (Social Services) Regulations 1989". The applicant's sister was further informed that the Council was seeking Counsel's advice on what aspects of the applicant's file could properly be disclosed and on the status of what was described as Mr. H's (the social worker's) report.        On 19 December 1996 the Council invited the applicant's sister to inspect the applicant's personal file. The Council informed the applicant's sister that the file had been edited, adopting the same procedure as if the applicant herself were to have sought access. Moreover, the applicant's sister was warned that inspection was on the basis that the file would not be disclosed or copied to another person.        On 14 January 1997 the applicant's sister objected to the conditions attached to her obtaining copies from the file, including the requirement to attend in person. She reiterated her position that she sought access to "the personal information" held by the authority, which was not limited to "the applicant's file". Moreover, she required a statement of all personal information which had been "edited" and which would not be available, in order to be able to challenge any decision the authority might have made not to disclose it.   COMPLAINTS   1.    The applicant complains under Articles 8 and 10 of the Convention that she cannot have access to information about herself which is held by a public authority. Insofar as Article 10 is concerned, the applicant submits that her case is distinguished from Gaskin v. the United Kingdom (judgment of 7 July   1989, Series A no. 160), because the State is under a positive obligation to impart the information concerning the applicant, given the nature of this information and the applicant's mental state.   2.    The applicant also complains under Article 13 of the Convention that there is no remedy under domestic law by which she can enforce disclosure of the information in issue. The application to the Court of Protection was a discretionary remedy which did not provide the applicant with full redress.   3.    The applicant further complains of a violation of Article 1 of Protocol No. 1. She claims that, as a result of the State's withholding access to the information in question, she is denied the potential right to compensation for the injuries and violation of her dignity which she may have suffered.   4.    Finally, the applicant complains of a violation of Article 14 of the Convention in conjunction with each of the above-mentioned provisions, in that she is discriminated in the enjoyment of the above- mentioned rights because of her lack of mental capacity.   THE LAW   1.    The applicant complains under Article 8 (Art. 8) of the Convention that she cannot have access to information about herself which is held by a public authority. In particular, she complains of the failure of her local authority to disclose to her sister the contents of her file, as well as a report compiled by a social worker, Mr. H., and certain documents referred to in the August 1995 social services' report.        Article 8 (Art. 8), insofar as relevant, provides as follows:        "1.   Everyone has the right to respect for his private and      family life, his home and his correspondence."        The Commission notes that the applicant is a person suffering from a brain abnormality over which the local authority has certain responsibilities under domestic law. It is in the exercice of these responsibilities that the local authority has compiled certain information about the applicant. The issue which must be, therefore, determined is whether the United Kingdom, in handling the requests submitted on behalf of the applicant for access to information, was in breach of a positive obligation flowing from Article 8 (Art. 8) of the Convention.        The Commission recalls in this connection that, although some persons "have a vital interest" in receiving information concerning themselves which are in the possession of a public authority, "confidentiality of public records is of importance for receiving objective and reliable information, and that such confidentiality can also be necessary for the protection of third persons" (Eur. Court HR, Gaskin v. United Kingdom judgment of 7 July 1989, Series A no. 160, p. 20, para. 49).        Moreover, the Commission notes that the local authority finally agreed to grant the applicant's sister access to the applicant's file. Although the authority accepts that some information has been "edited", there is no indication that this was done with an aim other than to protect information about third persons. Furthermore, the applicant's sister has not accepted the offer to inspect the file and, as a result, she has deprived herself of any opportunity of assessing whether relevant information is being withheld.        The Commission also notes that the applicant's sister has taken part in three case conferences with H and claims to be in possession of the August 1995 social services' report, which she has not disclosed to the Commission. However, she has not been able to provide any indications about the nature of the information concerning the applicant which, not being part of her file, might have been contained in H's report and the other documents referred to in the August 1995 report. Insofar as the applicant may be understood as submitting that these documents should have been made available to her sister even in the absence of any such indications, the Commission considers that Article 8 (Art. 8) cannot be interpreted as requiring access to any document in the possession of a public authority which an individual may wish to consult.        In these circumstances, the Commission considers that it has not been established that the United Kingdom has handled the requests submitted on behalf of the applicant for access to information in a manner which did not comply with positive obligations which might be flowing from Article 8 (Art. 8) of the Convention. It follows that no appearance of a violation of Article 8 (Art. 8) of the Convention is disclosed and this part of the application must be rejected as manifestly ill-founded in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant complains that her lack of access to the information in question also amounts to a violation of her right under Article 10 (Art. 10) of the Convention.        Article 10 para. 1 (Art. 10-1) of the Convention provides as follows:        "Everyone has the right to freedom of expression. This      right shall include freedom to hold opinions and to receive      and impart information and ideas without interference by      public authority and regardless of frontiers."        The Commission recalls that, in the case of a person who was claiming access to public records concerning the time he had spent as a child in public care, the Court considered that   Article 10 (Art. 10) does not embody an obligation on a State to impart such information (see above-mentioned Gaskin v. United Kingdom judgment, op. cit., p. 21, para. 52). The Commission considers that the same applies in the case of the applicant. It follows that no appearance of a violation of Article 10 (Art. 10) is disclosed and this part of the application must be   rejected as manifestly ill-founded in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant complains under Article 13 (Art. 13) of the Convention that there is no remedy under domestic law by which she can enforce disclosure of the information in issue.        The Commission recalls that Article 13 (Art. 13) of the Convention guarantees the right to an effective remedy to persons who have an arguable claim that their rights under the Convention have been violated (No. 14132/88, Dec. 13.4.89, D.R. 61 p. 285). However, this is not the applicant's case, insofar as her rights under Articles 8 and 10 (Art. 8, 10) are concerned. It follows that this part of the application must be also rejected as manifestly ill-founded in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.   4.    The applicant complains under Article 1 of Protocol No. 1 (P1-1) that, as a result of the State's withholding access to the information in question, she is denied the potential right to compensation for the injuries and violation of her dignity which she may have suffered.        However, the Commission considers that neither the Convention nor any of its Protocols guarantee a right to compensation in such circumstances. It follows that this part of the application is incompatible ratione materiae and must be rejected as incompatible with the provisions of the Convention in accordance with Article 27 para. 2 (Art. 27-2).   5.    The applicant complains under Article 14 (Art. 14) of the Convention that she is discriminated in the enjoyment of her rights under the Convention because of her lack of mental capacity.        Article 14 (Art. 14) of the Convention provides that the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.        Insofar as the applicant complains that she is discriminated in her right to receive compensation, the Commission recalls that such a right is not guaranteed by the Convention or its Protocols. It follows that this part of the application must be also rejected as incompatible with the provisions of the Convention in accordance with Article 27 para. 2 (Art. 27-2).   6.    Insofar as the applicant complains of discrimination in the enjoyment of her rights under Articles 8, 10 and 13 (Art. 8, 10, 13) of the Convention, the Commission notes that the local authority has agreed that the applicant's sister could have the same access to information in the applicant's file as the applicant would have had herself under the Access to Personal Files (Social Services) Regulations 1989, if she had been of full mental capacity. Moreover, there is no indication that the applicant would have had access to the other documents, if she had not lacked mental capacity. It follows that the applicant's lack of mental capacity has not resulted in any different treatment as regards access to information held by the local authority. Nor has the applicant established that domestic law provides for less remedies to a person of her mental capacity in respect of access to information.        As a result, this part of the application must be rejected as manifestly ill-founded in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.       M.F. BUQUICCHIO                             J. LIDDY      Secretary                                President to the First Chamber                     of the First Chamber