Time to read the rights act

When the Human Rights Act 1998 came into force in October 2000,
the government’s intention was for it to become the basis for a
“human rights culture” in the UK. In the background, councils and
other service providers feared that the act would open the
floodgates to vast numbers of dubious legal challenges.

Two years later, the expected deluge of social care cases has
failed to materialise, although challenges are now being made in
other fields. And while we read about the likes of Catherine Zeta
Jones and Michael Douglas using the act to protect their privacy,
there have been few human rights claims from disadvantaged
people.

Some areas where challenges were expected have already had their
day in court. The Home Office has dealt with a number of challenges
from asylum seekers and prisoners. A couple of families have
challenged their children’s antisocial behaviour orders in the
House of Lords, and lost. Challenges from people with mental health
problems were also predicted, hence the government’s review of the
system, says Bernadette Livesey, a human rights lawyer at
solicitors Walker Morris.

But there have been few challenges around other social care issues
such as disability or child care. The latter is particularly
surprising, given the criticism the government received from the UN
Committee on the Rights of the Child last year.¹

The reason for so few cases being brought may be financial.
Following the act’s implementation, the government provided an
extra £60m a year for legal aid and court costs. But,
according to Livesey, much of this money remains untouched. This is
because people with potential human rights cases are failing the
“significant case” test. “The Legal Services Commission has to
think the human rights issue of the case is significant enough to
be tested by the courts,” she says. “So you have litigation
solicitors who think their clients have a claim because the problem
is affecting their life in a major way, but they are being turned
down for legal aid by the Legal Services Commission.”

This decision is rarely contested because a court is unlikely to go
against the commission in case it is seen as undermining the
system, says Livesey.

If legal aid were more widely available she believes there would be
more challenges. “People would be challenging a lot of things. If I
was a child in the care system and I wasn’t receiving the services
I should, then what would I do? There is a complaints system, but
if the council can’t provide me with what I need, who rectifies
that?”

Livesey also highlights issues around the allocation of resources –
still an untested area. “For example, if I’m an older person in a
care home and I want to go back to my own home, but the money for a
care package isn’t available, how do I challenge that?”

The answer may be that we simply do not have a human rights
“culture”. A recent report from the British Institute of Human
Rights suggests that there has been been “no serious attempt by
government or the voluntary sector to use the Human Rights Act to
create a human rights culture that could in turn lead to systemic
change in the provision of services by public
authoritiesÉleaving many vulnerable people open to abuses of
their rights”.²

This is exacerbated, according to the report, by staff in public
services who do not understand the act, the rights it contains or
the responsibilities they have to uphold. Gary FitzGerald, chief
executive of Action on Elder Abuse, says: “Unlike legislation for
sex, disability and race discrimination – where there was a
tremendous amount of work done by local authorities to give staff a
basic understanding of what it meant – this doesn’t seem to have
happened for human rights legislation.”

The daunting and, without legal aid, costly process of going to
court is another possible source of reticence. Negotiating the
legal system is complicated and carers are often too tired to make
legal challenges, says Emily Holzhausen, public affairs manager at
Carers UK.

But FitzGerald believes that, if people understood their rights
under the act, just being able to say “this is a breach of my
rights” could galvanise action, ultimately preventing the need for
a court case.

“It can be the trigger that promotes greater attention to adult
protection issues. The act carries more weight than saying
something doesn’t meet some standard, because it is bigger than
UK-wide,” he adds.

The principles of the act need to filter down into daily practice,
says Holzhausen. “So that when the care manager goes into a home,
the act has an influence on how they think about the issues that
affect people’s daily lives. We want dignity, respect, and family
life, all those rights that are supposed to follow through the act,
for carers.”

Most social care observers agree that the act needs beefing up, in
the shape of a human rights commission – the single recommendation
to emerge from the British Institute of Human Rights report. After
all, would race relations legislation have had the same impact
without the Commission for Racial Equality, or disability
legislation without the Disability Rights Commission?

Meanwhile, a host of social care issues have arisen around
resources and boundaries now that health and social care are
working more closely together. Livesey says: “Challenging these
would clarify some of the guidelines that people are working to.
People need to be clear about what they can and can’t do, as
professionals and recipients.”

Ultimately, the act is underused not because we do not have a
“human rights culture”, but because many disadvantaged people are
unaware of what they are entitled to and lack the support to pursue
it. cc

¹ For more on Concluding Observations of the
Committee on the Rights of the Child go to
www.unhchr.ch

² J Watson, Something for Everyone,
British Institute of Human Rights, 2002

Damages in landmark case

In October 2002, the High Court awarded £8,000 damages to a
disabled woman and £2,000 to her husband against the London
Borough of Enfield for its failure to provide adequate community
care services.

It was the first time that the UK courts had awarded damages under
the Human Rights Act 1998. The court ruled that Enfield had shown
“a singular lack of respect for the claimants’ private and family
life”, breaching article 8 of the act.

The case illustrates how the act is making inroads into social
services’ immunity from compensation claims, which arise from
inadequately carrying out their duties.

The couple and their six children had lived in a house adapted for
their needs by the council which they were forced to sell in 1996
due to mortgage arrears. After a 15-month tenancy in an unadapted
house, the family were accommodated in two more houses by the
council’s housing department, neither of which was adapted.

In June 2000, the housing department decided that it only had to
provide temporary accommodation on the grounds that the family had
made themselves intentionally homeless after leaving the third
house because of rent arrears.

Three months later, the social services department assessed the
family’s needs in the fourth house and concluded that it was
unsuitable for the woman who was forced to live in the lounge and
use an outside toilet.

Enfield accepted that it owed her a duty to provide accommodation
that met her needs under section 21 part III of the National
Assistance Act 1948. But over the next 20 months the council did
nothing to meet these needs.

The day before the hearing the family was moved into suitably
adapted accommodation provided by the council, although this did
not stop the court awarding damages.