4(B). Arguments pool

The arguments pool presents seven clusters of legal arguments which, in MDAC’s experience, are the most appropriate for lawyers to use when advancing their client’s right to live in the community. Deployment of the arguments will of course depend on a variety of factors including the specific facts of the case, domestic law, and on prevailing norms of judicial argumentation in different legal fora.

The first cluster relates to the provision of community support services, and the issue of ‘progressive realisation’ – particularly important as governments frequently raise this as a justification for their slow progress in rolling out the right to live in the community. Second, the right to liberty is presented, and thirdly, a cluster of rights connected with privacy, family and home are outlined, which are important concepts in many domestic legal frameworks. The fourth cluster relates to the right to non-discrimination, followed by the fifth on access to justice. The sixth cluster relates to the right to a fair trial before the seventh which deals with challenging conditions in institutions. When litigating the right to live in the community, lawyers will inevitably face hurdles based on restriction of their client’s legal capacity, and this is an issue which is covered in many of the argument clusters.