the human rights act 1998 the basics

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the human rights act 1998 the basics

Post by Admin on Sun Apr 16, 2017 12:48 pm

the-human-rights-act-1998-the-basics


Introduction

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 DWP benefit decision-makers, HM Revenue and Customs, courts, appeal tribunals and Upper Tribunal judges. 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.

Examples of Article 6 issues raised in case law include:

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 - the right to respect for private and family life. This is concerned with promoting private or family life.

Examples of Article 8 issues raised in case law include:

R v North & East Devon Health Authority ex p Coughlan [1999] concerned a lady 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 the health authority had breached Article 8.

Carson & 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.
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Re: the human rights act 1998 the basics

Post by Admin on Sun Apr 16, 2017 12:49 pm

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.

Examples of Article 14 issues raised in case law include:

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 under Article 14 of the Convention for the Protection of Human Rights.

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.

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

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

Stec & others v UK (formerly Hepple & others v UK) has ruled that non-contributory benefits are 'possessions' for the purposes of Article 1 of Protocol 1 of the European Convention on Human Rights (ECHR).

CIS/3282/2007 [2010] UKUT 263 (AAC) found that Article 1 of Protocol 1 was not breached when the law was changed in respect of those detained under Section 47 of the Mental Health Act 1983, removing entitlement to IS.

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

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 convention 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.
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