News

With the advent of the Human Rights Act, benefits clients find themselves better armed in a number of areas but principally in appealing against the decisions of review boards and tribunals. Gary Vaux explains.

What difference will the Human Rights Act make in the real world of social security?

The most obvious answer is in the field of appeals. Already, the government has brought housing benefit review boards into the scope of the more formal social security appeals service structure. From April, councillors will no longer be able to sit in judgement over the decisions made by the housing benefit staff that they employ. This was seen as contradicting article 6 (1), which deals with the right to a fair trial in both criminal and civil proceedings.

The Human Rights Act came into effect in October, so there is an interesting six-month period in which housing benefit review board decisions could be challenged, by judicial review, for being fundamentally in breach of the act. The fact that all benefit decisions made by review boards carry implications for the housing benefit subsidy that local councils get from central government means that these boards could be seen as neither independent nor impartial, even if they tried to act fairly in practice.

But the appeals service itself could be open to challenge. Clerks to tribunals, who have the power to strike out an appeal, are employees of the secretary of state for social security, who has nominally made the decision that is being appealed against. Tribunal members are also paid by the same secretary of state - another ground for arguing that tribunals can appear unfair.

One practical implication is that both sides to an appeal where medical evidence is important must have equal access to that evidence or the means to get it. So, because the Benefits Agency can require a claimant to attend a medical, but the claimant can't demand free reports from their GP or consultant, tribunals may have to order and pay for the reports that a claimant needs. This may help redress the balance of evidence, which often works against the claimant at present.

Other social security challenges could lie within article 8 (right to family life). Absent parents who can't get full housing benefit on a three-bed house after divorce because they are not seen as having responsibility for "visiting" children may be able to use this provision, for example. As men are disproportionately affected by that rule, it may also be challenged under article 14, which deals with discrimination.

However, people hoping to use article 14 to challenge the discriminatory nature of bereavement benefits (which will be paid to people who were married but not co-habiting nor same sex) will be disappointed. The European Court of Human Rights has already ruled that marriage confers special status and governments have some latitude to promote it over other forms of relationships.

But what happens next April, when social services take over the major responsibility for funding many care-leavers, replacing a mandatory, regulation-based scheme? And will the right to family life in article 8 be invoked if social services departments refuse to help families who face separation following eviction or other trauma? Will legal challenges under the act be possible against aspects of departments' charging policies, especially for residential care, which is largely based on regulations not discretion?

Some cynics have suggested that HRA (Human Rights Act) stands for Huge Rewards for Attorneys, but it is clear that financial and benefit matters will be at the forefront of the test cases that the new act will inevitably create.