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