The Human Rights Act (HRA), is a means of making a complaint against a public authority where you feel they have offended your rights under the 1950 European Convention of Human Rights (ECHR).
A public authority includes government departments such as the DWP benefit decision-makers, HM Revenue and Customs, courts, appeal tribunals and Social Security Commissioners. It can also include private companies doing government work such as those employed as part of social services community care agreements.
The ECHR sets out certain rights, written as articles and protocols, that you should be entitled to. The ones, which may be most useful for you in terms of benefit law 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 should cover most disputes concerning your benefits except perhaps for discretionary benefits such as social fund community care grants.
Another use of Article 6 might be under community care. If, for example, a local authority offers you residential care instead of your preferred option of home care you may be able to use the HRA to challenge whether the local authority took full account of your needs and arrived at their decision in a fair manner.
Article 8 - the right to respect for private and family life. This is concerned with promoting private or family life. It might be used to challenge whether the levels of certain benefits are too low to maintain home and family life or whether, for example, it is unfair for benefit rules to penalise certain people.
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. It could be held, for instance, that different rates of benefit for different adult age groups.
First Protocol, Article 1 - the right to protection of property. The definition of property can apply to benefits.
First Protocol, Article 2 - the right to education. .
You can use the HRA whenever you are appealing to a tribunal, commissioner or a 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 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.
The HRA has already forced public authorities to change their procedures which may help you without needing to complain at all. For example, since July 2001 housing benefit review boards were replaced by the same independent appeal system that applies to other benefits.
Otherwise, if you make a complaint there are a number of remedies available. You could get your benefit restored for example. Any tribunal or commissioner can do this. They can also decide if a regulation should not apply in your case because it is against your convention rights. You could also be paid damages but in order to get these you must go through the courts.
There is one problem. Public authorities have to obey an Act of Parliament even if this is against your rights. In these cases certain courts, such as the High Court 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.
You can find out if there is a law centre in your area from our factsheet F15, Finding a local advice centre, which is available at www.disabilityalliance.org/f15.htm.
You can obtain copies of our factsheets, or order our publications, by contacting Disability Alliance on 020 7247 8776 (voice and minicom) or by fax on 020 7247 8765.
April 2008
