Two disabled people are challenging the Department of Health at the High Court this week over the bar on them receiving direct payments.
As continuing care patients living at home, Steven Harrison and Valerie Garnham are denied direct payments because their care is funded by the NHS rather than councils.
However, on Thursday their lawyers will argue that continuing care patients can lawfully be provided with direct payments and that current arrangements breach the European Convention on Human Rights.
Specifically, they will claim that Harrison and Garnham’s rights to private and family life and to protection from disability discrimination have been breached.
Harrison, who broke his neck in 1998 in a diving accident, received direct payments until 2005, but he was then reassessed as having a health need and started receiving continuing care, losing eligibility to direct payments.
The case comes with the government legislating in the current Health Bill to enable NHS patients to receive direct payments. The legislation will be used to pilot personal health budgets for people with long-term conditions.
However, Harrison’s solicitor, Lindsey Rhodes, said: “We do not think this is a matter that can be put off while the Department of Health seeks a change in legislation and introduces pilot schemes on a gradual basis. That pace of change is too little too late for people whose quality of life and right to live independently is compromised now.”