The Human Rights Act 1998 (HRA)

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.

What are Human Rights?

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.

You may also use Article 6 in disputes over your local authority care assessment. 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 are discriminatory.

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.

When to use the HRA?

You can use the HRA whenever you are appealing to a first tier appeal 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.

What can the Human Rights Act do?

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 first tier tribunal or upper tribunal judge can do this. They can also decide whether a regulation should apply in your case if it is against your convention rights. You can also be paid damages but in order to get these you must go through the courts.

However, public authorities have to obey Acts of Parliament even if they are 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.

WHERE CAN I GET HELP?

You should seek further advice if you want to challenge a decision about your benefit. You can get help with your appeal at a local advice centre, such as a citizen's advice bureau. You can get more information about this from our factsheet F16, Finding a local advice centre, which is available at www.cara-online.org

Central Africa’s Rights & AIDS (CARA) Society has also published Benefit appeals - A guide to benefit appeals for advisers and disabled people. This guide helps you prepare for an appeal tribunal and will increase your chances of success at the hearing. It takes you through all the stages of the benefit decision-making process from the moment you receive an unsatisfactory decision through to the tribunal hearing.

It is available to have a look at it on our website at www.cara-online.org or by contacting Central Africa’s Rights & AIDS (CARA) Society on Tel: +44(0)20 7254 6415(voice and minicom) - Mob.:+44(0)7956 95 26 45 - Fax: +44(0)872 115 8436 - Email: caraas@hotmail.com

Updated July 2009