Comparison contrast

There is a significant problem with the Deprivation of Liberty Safeguards. They apply where someone who lacks capacity to decide where to live is deprived of liberty. What that means has been considered by the Court of Appeal and will eventually be considered by the Supreme Court. The position remains confused, however, and it can also be decidedly inequitable (Cheshire West and Chester Council v P [2011] EWCA Civ 1257).

The court said that in deciding whether someone is deprived of liberty, one must consider the "relative normality" of the situation (per Munby LJ, at [102]). Though this, admittedly, necessitates the use of a comparator, the court's way of identifying that person has met with criticism.

Lord Justice Munby said that in a case concerning an adult with disabilities, the comparator is not "the able-bodied man or woman on the Clapham omnibus"; it is someone of the same age as the person in question, with the same capabilities and "affected by the same condition or suffering the same inherent mental and physical disabilities and limitations".

This is a subjective test and it surely entails that mentally incapable people are entitled to less in the way of liberty than the rest of us (see: 'Deprivation of liberty can never be 'normal', SJ 156/220, 22 May 2012). Furthermore, and as the case in which it was set out demonstrates, the test can yield curious results.

The Court of Appeal found that a man was not deprived of liberty, even though every aspect of his life was supervised by the local authority and involved its staff; he was required to live at a care home and could not leave it unescorted; he had little privacy; he was sometimes placed in restraint; and, because he often tore off and ingested continence pads and their contents, he was placed in a one-piece 'body suit' and often subjected to an intrusive 'finger sweep' of his mouth.

The court said the life the man was living was not "significantly different from the kind of life that anyone with his concatenation of difficulties could normally expect to lead"; on the contrary, there was "a strong degree of normality" in his life, "normality, that is, assessed... by reference to the relevant comparator" (Munby LJ).

This is not the only area of law to require an assessment of the extent to which a person's life diverges from the 'normal'.In other areas, however, the subjective test is replaced by an objective one. That has been so, for example, in connection with entitlement to Disability Living Allowance (DLA).

DLA is a weekly benefit, one component of which is payable where someone "requires from another person frequent attention throughout the day in connection with his bodily functions" (Social Security Contributions and Benefits Act 1992).

That the test this entails is an objective one is clear from a speech of Lord Denning, MR. Speaking about a forerunner of DLA, he said that the bodily functions in question are those "which an ordinary person - who is not suffering from any disability - does for himself" (R v National Insurance Commissioner, ex parte Secretary of State for Social Services [1981] 1 WLR 1017, at 1022B-C).

That the result this test can yield is very different from that of a subjective test is clear from the case of Fairey. There, the House of Lords found that a woman, who had been born deaf and communicated mainly by signing, might be entitled to DLA by virtue of the attention she received from an interpreter (Secretary of State for Social Services v Fairey [1997] 1 WLR 799). Lord Slynn said the test "is whether the attention is reasonably required to enable the severely disabled person as far as possible to live a normal life". Crucially, he added that the person concerned "is not to be confined to doing only the things which totally deaf (or blind) people can do".

The House of Lords and the Court of Appeal have differed in their approach to the 'normal' life and, most particularly, how it is to be assessed. While, of late, a great deal of attention has - rightly - been paid to the merits and demerits of the subjective test, we should not assume that it is the only one logic, or indeed the law, allows.