Equality and Human Rights Commission

At UN level the Optional Protocol enables the UN Disability Committee to look at individual cases as well as systemic violations of disabled people’s human rights by the UK Government.

At national or local level, even though you cannot take the government to the court over a breach of the Convention alone, there are several ways in which you can use the Convention to strengthen your case – no matter whether you are challenging the government or another public authority. This could be:

• Where you believe that the issue you are facing is covered by another piece of legislation that is directly enforceable in the UK courts (for example, the Human Rights Act or equality legislation).
• Where you make a complaint against a public authority, either through internal procedures or through inspectorates such as the Care Quality Commission or Ombudsman.

This section explains how you can go about making a complaint if you believe your rights have been breached.

Step 1: Talk to someone you trust about it. It could be a friend, a relative, an advocate or a colleague at work. Work out what is going wrong, which rights are affected and what you want to change. If you are unsure whether the Convention applies to your situation, don’t be afraid to ask for advice. If the problem you are facing is being treated badly at work or when trying to use services, it may be that the body concerned is breaching your rights under equality legislation. Talking to a national disability group or an advice agency could help you figure out which Convention rights are relevant to your situation and whether any other rights are being infringed.

Step 2: Try to resolve it with the person or body causing the problem first. There are lots of examples of disabled people using human rights arguments to get a public body to change something. See Part 4 for places to find those examples.

Step 3: If that doesn’t work ask about their complaints process. All public bodies have a complaints process. All employers must have a grievance procedure for employees.

Step 4: If this doesn’t resolve matters, you can try writing to or contacting your local councillor or your MP, MSP or Assembly member. They might write a letter to the public body on your behalf. A disability group might also help make representations on your behalf. Sometimes this might resolve things.

Step 5: You might want to consider legal action, but first seek advice from the Equality and Human Rights Commission or one of the organisations listed in the ‘Further information’ section. Bringing legal action can be very expensive and difficult unless:

• you have a very low income and qualify for legal aid (legal aid is where the government pays your legal costs). You will not qualify for legal aid if it’s an employment case
• the Equality and Human Rights Commission or another body is willing to support your case (the Commission can only support cases involving human rights that also raise issues under equality legislation – but see below for other powers they have to take action against human rights abuses).

If you want to bring a legal case, it will need to be a case under the Human Rights Act or equality law. You can’t bring a legal case under the Convention. But you can certainly use the Convention to strengthen your case.

You need to identify which rights in the Human Rights Act or equality law are affected in your case. Then look at the relevant article(s) of the Convention to see what it says about your human rights in that area and use that in your argument. Your legal representative should be able to identify these issues – if they don’t you should raise it with them.

Example: Using the Convention in your complaint

Pratibha has been receiving home care from her local authority. She has very high support needs. She asks for her needs to be assessed again as she feels she needs more help. Her local authority agrees her needs have increased. The only way they can meet those needs, they say, is if she moves into a residential care home. Their budget is under pressure and they say it would be too expensive for them to pay for home support. Pratibha feels strongly that she wants to stay in her own home. She is very active in her local community and has lots of friends and interests.

Pratibha can use the Convention together with other laws to argue that the local authority should support her to live at home.

She can argue that:

• Article 8 of the European Convention on Human Rights imposes a duty on her local authority to respect her right to private and family life. This right includes being able to have friends and take part in social and cultural activities and leisure. When people go into residential care they can be cut off from friends and access to the wide range of activities they would normally pursue if they lived at home. This right is also about protecting a person’s mental and physical wellbeing. Pratibha is certain that she would become depressed if she was uprooted and deprived of her independence.
• Article 19 of the UN Disability Convention says very clearly that she has the right to choose where she lives and who she lives with. It says she has the right to live in the community and the right not to be forced into any particular kind of living arrangement such as a residential care home. This will strengthen her case.
• Under the Equality Duty her local authority also has a duty to promote equality of opportunity for disabled people. That duty applies when decisions about individuals are being made. Moving her to a care home would remove her opportunities to take part in all the things she currently does. She can remind them of this and ask them whether they have done a disability equality impact assessment, share the findings of it with her or ask them to do one and involve her in the process.

If you are a child – There are Commissioners for Children and Young People in each country responsible for promoting their interests. You can tell them about your problems.

How the Equality and Human Rights Commission can help tackle human rights violations

The Equality and Human Rights Commission can:

• give disabled people free advice and information about their human rights via its helpline and, in limited circumstances, can support individual legal cases
• undertake research and provide education or training
• conduct inquiries, investigations and assessments
• bring legal proceedings called ‘judicial review’ against a public body (for example a council or government department) if needed to stop a human rights violation
• intervene in legal cases involving human rights that other people have started. This means that the commission can give the court expert advice.

How the Scottish Human Rights Commission can help

The Scottish Human Rights Commission can:

• intervene in legal cases in Scottish courts to give expert advice
• undertake inquiries into Scottish public authorities and, as part of an Inquiry can inspect a place of detention
• conduct research, provide advice or guidance, education or training
• review or recommend changes to any area of Scottish law or in the policies or practices of Scottish public authorities.

If you are pursuing a legal case involving human rights and the Convention let the Commissions know about this:

• In case they are able to intervene with helpful arguments.
• So that they have evidence to use to help them advise government on action needed to protect disabled people’s human rights.

If you have been through all the available routes for redress in Britain and have not got justice, consider making a complaint to the UN Disability Committee.

How do I make a complaint to the UN Disability Committee?

The Optional Protocol establishes the communications procedures and the inquiry procedure.

The communications procedure allows people to bring a petition to the UN Disability Committee if they believe that their Convention rights have been breached and they have exhausted means of redress via the UK courts.

The inquiry procedure allows the UN Disability Committee to undertake inquiries, when reliable information is received into allegations of grave or systematic violations of Convention rights.

You can complain to the UN Disability Committee about a violation of your rights under the Convention if:

• You are the (alleged) victim. If you are not the victim you must have permission to act on the victim’s behalf.
• The complaint is against the government. It cannot be brought against other authorities, for example your council. If you believe that the Welsh Assembly Government or the Scottish Government is in breach of the Convention, then you must still complain against the UK Government although it would be best to first use any available complaints mechanisms including the relevant Ombudsman.
• The complaint is well-founded. This means you need evidence that a real human rights violation has taken place. The violation must clearly relate to one or more articles of the Convention.
• The complaint does not go against the principles and rights set out in the Convention. You have used all the possible legal remedies available in Britain without success.
• There is no law you can use in Britain to enforce that particular Convention right. For example there is no law in Britain that says that government has a duty to ensure disabled people have an adequate standard of living and an accessible home. However, if you are living in real hardship or in conditions that cause you loss of dignity, even after claiming all the benefits and grants you are entitled to or because of grossly inadequate housing, this might be a situation where a complaint could be made to the UN Disability Committee (because the government hasn’t taken enough steps to make real the right to an adequate standard of living, Article 28).

There are other important rules about bringing a complaint:

• The issue you are complaining about must have either happened after the UK ratified the Convention, or if it started before the date of ratification (8 June 2009) it must still be continuing at the time you want to make the complaint.
• You cannot make an anonymous complaint (in other words you need to say who you are).
• The issue must be one the UN Disability Committee has not looked at before.
• The issue must be one that is not being looked at by another international rights body like the European Court of Justice or the European Court of Human Rights.

Other important things to remember:

1. Always seek advice from the Equality and Human Rights Commission or the Scottish Human Rights Commission before deciding whether to use the Optional Protocol. They can advise you about whether the case is suitable and if not, what else you might do.
2. Try to find out about other people affected by this issue. Groups of people can make a complaint as well as individuals. It might be easier if there is a group of you to support each other. Contact disabled people’s organisations locally or nationally just in case they know of other people who are affected.

How the Equality and Human Rights Commission can help

The Commission is keen to develop its work relating to Optional Protocols. The Commission can assist a complainant with the Optional Protocol in preparing a communication or petition to the UN Disability Committee – for example helping with the preparation of necessary documents and submissions. See the ‘Contact’ information at the end of this guide to find out how to get in touch.

Assuming your complaint meets all the criteria and you have been advised to go ahead, how do you make your complaint?
You will need to put it in writing and send it to the UN Disability Committee. The UN Disability Committee will provide information on their website on making a complaint.

What happens then?

If the UN Disability Committee accepts your complaint, they will ask the government to respond. The Committee then meets in private and decides what finding to make.

The UN Disability Committee gives both parties a copy of its recommendations, and a summary is included in its annual report.

The UN Disability Committee’s findings and recommendations may not be enforceable but they carry a lot of moral authority because Governments don’t like to be told that they’re wrong, and will often try to put things right. It may force the Government to pass new legislation, change a policy or find the money to sort the issue out.

Case study: Using the complaints procedure to tackle violence against women

In 2004 two Austrian women’s organisations filed complaints under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) on behalf of two women, Sahide and Fatma. Each woman had been killed by their husband after suffering repeated abuse. They had each brought various violent incidents to the attention of the Austrian authorities, did not get sufficient support, and were ultimately murdered. The women’s groups argued that the Austrian state had failed to do enough to protect the lives of the two women and that this violated their rights guaranteed under the CEDAW.

The CEDAW Committee agreed with them. In August 2007 they found that Austria had failed to protect the women’s lives and made clear recommendations about what Austria should do to avoid the same violations of women’s human rights in the future.

As a result a series of new policy measures have been introduced and the process of legal reform to protect Austrian women from violence has gained real momentum.

How do you get the UN Disability Committee to launch an inquiry into human rights violations?

The UN Disability Committee can launch an inquiry into severe or widespread violations of the Convention by any country which has ratified the Convention and Optional Protocol. ‘Widespread’ means the violations affect a lot of disabled people and/or appear to be part of a deliberate policy. The Committee would need reliable evidence about the alleged violations before deciding an inquiry is needed. Individuals or organisations can submit evidence or use the ‘individual communications procedure’ to bring such breaches of rights to the attention of the UN Committee.

If you think there is evidence of severe or widespread violations of Convention rights that the UN Disability Committee should investigate you would need to:

• work together with other disability groups and the national Human Rights Commissions to assemble detailed evidence about the rights violations, and
• write to the UN Disability Committee asking them to investigate.

You should check if either the Equality and Human Rights Commission or the Scottish Human Rights Commission would be willing to conduct an inquiry instead. Seek their advice about whether a UN inquiry is needed.

Experience of inquiries under other Conventions shows that they can be an effective way of stopping human rights abuses and bringing about change.

Case Study: The difference an inquiry makes

In 2004 the Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) completed an inquiry into the rape, abduction and murder of women in the Ciudad Juarez area of Chihuahua in Mexico. The Committee concluded that Mexico had failed to protect women against gender-based violence, violating their most fundamental human rights. It made many clear recommendations for action. As a result:

• new laws have been passed on equality between men and women and ‘women’s access to a life free from violence’
• a Special Attorney’s Office has been set up to monitor investigations into femicide, and
• the women’s movement has been given a formal role in monitoring and developing regulations to ensure the law is properly implemented.