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The Human Rights Act 1998 (HRA)

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Disability Rights UK Factsheet F1

What is the Human Rights Act

The Human Rights Act (HRA) provides that UK courts “must take into account” any judgment, decision, declaration or advisory opinion of the European Court of Human Rights (ECHR).

The aim of the HRA is to allow people to enforce their human rights in UK courts rather than go through the long process of taking a case to the European Court of Human Rights in Strasbourg.

What does the European Court of Human Rights do?

The court hears cases related to the European Convention on Human Rights. This is an international treaty which member States of the Council of Europe have signed. The UK is a signatory. The Convention sets out a list of the rights and guarantees which the States have undertaken to respect. They include the following:

  • Right to life
  • Freedom from torture and inhuman or degrading treatment
  • Right to liberty and security
  • Freedom from slavery and forced labour
  • Right to a fair trial
  • No punishment without law
  • Respect for your private and family life, home and correspondence
  • Freedom of thought, belief and religion
  • Freedom of expression
  • Freedom of assembly and association
  • Right to marry and start a family
  • Protection from discrimination in respect of these rights and freedoms
  • Right to peaceful enjoyment of your property
  • Right to education
  • Right to participate in free elections

These rights are written as articles and protocols. The Ministry of Justice has produced a number of guides on the Human Rights Act.

Key Articles and Protocols

Some of the key articles and protocols that may be most useful for you are:

Article 6 - The Right to a Fair Trial. This gives you the right to an independent and impartial hearing of your case. Article 6 can be used for most disputes concerning benefits or complaints concerning social care assessments.

Article 8 - Which is concerned with promoting private or family life.

Article 14 - The right to freedom from discrimination. This is only used where one of the other articles applies and you suffer discriminatory treatment. This could be any discrimination within the benefit system.

Article 1 of Protocol 1 - The right to protection of property. The definition of property can apply to benefits.

You can view the full list of Articles in Schedule 1 of the Human Rights Act, available at www.legislation.gov.uk/ukpga/1998/42/contents.

When to use the Human Rights Act

You can use the Human Rights Act (HRA) to make a complaint against a public authority where you feel they have offended your rights.

Public authorities include government departments such as DWP benefit decision-makers, HM Revenue and Customs, courts, appeal tribunals and Upper Tribunal judges and also private companies doing government work (such as those employed as part of social services community care agreements).

You can use the HRA whenever you are appealing to a First-tier Tribunal, Upper Tribunal or court but you are bound by the time limits for whatever method you use. If this is a tribunal you normally have one month. If you apply for a judicial review you have up to three months. When you use the HRA you will need to show which part of the convention has been breached and be able to back this up with reference to European case law. There are not many advisers who have the skills or the time to look into this so you will almost certainly need to seek specialist legal advice.

Where you feel a breach of the convention is the only issue you can apply directly to a court. You have one year to do this, though you can be allowed longer in certain circumstances. Get legal advice.

What can the Human Rights Act do once you complain?

The HRA only requires UK courts to take account of European Court of Human Rights judgements or opinions. It does not necessarily mean a court is bound to follow them. However, UK courts cannot ignore ECHR decisions and must give them consideration.

An example of a case where the UK government has refused to follow a ECHR decision is Hirst v the United Kingdom [2005]. This case ruled that a blanket ban on prisoners being allowed to vote was against Article 3 of the First Protocol: Right to free elections.

On the other hand, the HRA has already forced public authorities to change their procedures which may help you without needing to make a complaint at all. For example, since July 2001, housing benefit review boards, which often heard cases irregularly, were replaced by a fairer and more formal independent appeal system.

If you make a human rights related complaint, there are a number of remedies available. A tribunal or court can:

  • get your benefit restored.
  • direct your case to be reheard.
  • set aside a regulation which is against your convention rights.
  • award you damages (courts only).

Although the HRA empowers courts to set aside regulations, public authorities have to obey Acts of Parliament, even if they are against your convention rights. In these cases, certain courts can declare an Act "incompatible". This does not change the law but points out to the government where an Act is against your convention rights. This may force the government to change the law using powers it has under the HRA.

Examples of Human Rights related cases

Article 6

Examples of Article 6 issues raised in case law include:

  • H (A Child) [2015] - A couple with learning difficulties who were separated from their baby for more than a year were awarded compensation after it was been established that the local council had violated their rights to a fair hearing
  • R(DLA)4/02 states that the filming of a claimant by DWP investigators does not infringe Article 6
  • CE/1084/2010 [2010] UKUT 409 (AAC) - The Upper Tribunal Judge found that the claimant had been deprived of a fair hearing because of misleading advice given by the DWP and his own apparent failure to understand and deal with appeal procedures.
  • CIB/849/2001* (112/01) concerned a possible breach of Article 6 of the Human Rights Act where a claimant received incorrect information and was refused a postponement of their appeal hearing.
  • CSIS/1009/2002 states that substantial delays in issuing an appeal tribunal statement of reasons may form part of an infringement of Human Rights under Article 6.
  • CIB/2751/2002 (and CS/3202/2002) states that where a domiciliary hearing is requested the tribunal is under a duty under Article 6(1) of the Human Rights Act 1998 to fully consider this.
  • CIB/8/2008 [2009] UKUT 47 (AAC) considered the unreasonable time (5 years in this case) it took for an appeal to be heard.

Article 8

Examples of Article 8 issues raised in case law include:

  • R v North and East Devon Health Authority ex p Coughlan [1999] concerned a woman who moved into a care home and was promised that it was a "home for life". However later the health authority believed the home had become uneconomic and proposed to close it and move Ms Coughlan elsewhere. In deciding this the health authority had breached Article 8.
  • Carson and Reynolds v Secretary of State for Work and Pensions states that Article 8 does not require the state to provide a home nor does it impose any positive obligation to provide financial assistance to support a person's family life to the full or in any particular manner.
  • R(DLA)4/02 states that the filming of a claimant by DWP investigators does not infringe Article 8.
  • CH/3017/2005 considered Article 8 with regard to the housing benefit rules which prevent a close relative residing in a dwelling from being liable to make payments and therefore not entitled to housing benefit. It found that there was no obligation to provide assistance to support a person's family life.

Article 14

Examples of Article 14 issues raised in case law include:

  • RF v Secretary of State for Department of Work and Pensions (2017)- ruled that PIP mobility regulation changes were unlawful for those with psychological distress and quashed them.
  • Mathieson v Secretary of State for Work and Pensions [2015] ruled that suspending child's DLA after 84 days in hospital breached his human rights. Following this decision, the relevant law regarding DLA and PIP has been changed by SI 2016/556.
  • SM v Advocate General for Scotland [2010] considered whether the age limit of three years for children claiming high rate mobility component was incompatible with Article 14. It was held that that the difference in treatment between disabled children who are aged three or over and those who are younger does not amount to Article 14 discrimination providing the state can put forward an 'objective and reasonable justification' and that where a justification is put forward 'the court must regard it as sufficient unless it is manifestly without reasonable foundation.
  • Burnip v Birmingham City Council and another [2012] holds that the size criteria in the housing benefit regulations discriminates against disabled people, under Article 14 because they do not allow for an additional room to be paid for where a disabled person has a carer, or where two children cannot share a room because of disability.
  • MA and Ors -v- Secretary of State for Work and Pensions holds that the rules for adults concerning housing benefit size criteria (bedroom tax), introduced in April 2013, were discriminatory but that this was objectively justified because the Government had extended discretionary housing payments to alleviate financial loss incurred as a result of this law change. The judgement also considered that it would be difficult to legislate protection for adults with a disability (children were excepted from this ruling because of the earlier Burnip case)
  • R (RJM) v Secretary of State for Work and Pensions [2007] EWCA Civ 614 states that social security regulations, which disentitled a person without accommodation from receiving disability premium, do not discriminate against homeless persons.

Article 1 of Protocol 1

Examples of Article 1 of Protocol 1 issues raised in case law include:

  • Stec and others v UK (formerly Hepple and others v UK) has ruled that non-contributory benefits are 'possessions' for the purposes of Article 1 of Protocol 1 .
  • CIS/3282/2007 [2010] UKUT 263 (AAC) found that there was no breach of Article 1 of Protocol 1 when entitlement to income support was taken away from people detained under Section 47 of the Mental Health Act 1983. In other words, this differed from Stec (above) in finding that means-tested benefits do not count as 'possessions' for the purposes of Article 1 of Protocol 1.

You can view the full list of Articles in Schedule 1 of the Human Rights Act, available at www.legislation.gov.uk/ukpga/1998/42/contents.

Parliament has published a list of UK cases at the European Court of Human Rights since 1975

Brexit and the British Bill of Rights

Following the referendum vote, on 23 June 2016, the UK intends to leave the European Union (EU). In addition the Government proposes to replace the Human Rights Act with a British Bill of Rights. For more about the effect of these see F59 - brexit and human rights

Where can I get more help or information?

You can get more information about where to get personal advice, including legal advice, from our Factsheet F15 - Getting advice. All our factsheets are free to download on our website at disabilityrightsuk.org.

You can find summaries of Human Rights related court cases by going to the case law page on our website. You can also view case law at www.equalityhumanrights.com/en/our-legal-action/legal-casework

8 February 2018