Equality and Human Rights Commission

This short and highly readable report highlights the evolving use of the Human Rights Act - and the language, ideas and principles it contains - to challenge poor treatment and negotiate improvements to public services. The emphasis is on how people benefit from the law without resorting to the law. The report contains 32 case studies in which the HRA was expressly used as a framework to balance and protect the rights of all those concerned. For ease of reference, the case studies are grouped into categories such as protecting human dignity and using human rights where resources are an issue. Each category contains an explanation of which human rights are at stake and a range of real examples, drawn from different sectors, illustrating situations where similar human rights arguments could have been made.

• Human rights provide a framework for balancing competing rights. Human rights contain within them a mechanism for weighing the rights of individuals against each other, or against the rights and interests of the wider community.
• Human rights can be used by public sector staff to assess the needs of individual service users. Once public bodies are made aware of human rights they can use this knowledge to re-evaluate their services and ensure that the individual needs of service users are taken into account.
• This includes the avoidance of 'blanket' policies which risk leading to decisions which are disproportionate and therefore a potential breach of human rights.
• Public authorities must take proactive steps to protect people from harm, no matter who or what is the source of the harm.

'Too often the Human Rights Act is associated with technical legal arguments or perceived to be limited to high profile and sometimes spurious claims by criminals and celebrities'. This report debunks some of these misconceptions about the HRA by presenting examples of how human rights have been used to secure better outcomes by, and on behalf of:

• children
• older people
• women fleeing domestic violence
• disabled people
• people living with mental health problems
• asylum seekers
• Travellers
• parents and carers
• homeless people, and
• others facing discrimination, disadvantage or exclusion.

The report demonstrates how human rights have been used across a wide range of sectors by:

• advocates
• family members
• user-led support groups
• service users
• frontline service providers and managers
• those who commission services from the private and voluntary sectors.

This report, then, will be useful to any or all of these groups, and especially to readers seeking an accessible introduction to the application of human rights outside the courtroom.

Key human rights messages

Human rights offer a vision of equality which can protect people from ill-treatment by 'plugging gaps' in our anti-discrimination framework.

Some case studies demonstrate the 'added value' of a human rights vision of equality, which extends beyond anti-discrimination to encompass fairness of treatment, dignity, and respect.

This protects people who experience forms of ill-treatment that may not be considered discriminatory and therefore fall outside the protection offered by anti-discrimination legislation.

Example: Learning disabled man provided with inadequate accommodation
A health professional used human rights language to challenge the inadequacy of a learning disabled mans accommodation, which was being jointly paid for by the man and his social services department. For example, the washing facilities were inadequate and he was forced to use a toilet in the same room he slept in.

Following the health professionals intervention, social services agreed to seek alternative accommodation, demonstrating how human rights can be used to promote human dignity and challenge treatment that is inhuman or degrading, regardless of whether it is discriminatory. The health professional told BIHR The Human Rights Act is there to be used and has been really helpful in this case.
Source: The Human Rights Act Changing Lives, p.6

Human rights provide a framework for balancing competing rights

The case studies demonstrate that human rights provide a framework, based on proportionality, to balance competing rights. A proportionate response is one that is not excessive in the circumstances that does not use a sledgehammer to crack a nut.

The report explains that, with some notable exceptions such as the prohibition of torture, human rights are not absolute. Instead, they contain within them a mechanism for weighing the rights of individuals against each other, or against the rights and interests of the wider community.

Example: Learning disabled couple challenge the use of CCTV cameras in their bedroom at night
A learning disabled couple were living in a residential centre so their parenting skills could be assessed by social services. CCTV cameras were installed, including in their bedroom. Social workers explained that the cameras were there to observe them performing their parental duties and for the protection of their baby. The couple were especially distressed by use of the CCTV cameras in their bedroom during the night.

With the help of a neighbour, they successfully invoked their right to respect for private life. They explained that they did not want their intimacy to be monitored, and that, besides, the baby slept in a separate nursery. As a result, the social services team agreed to switch off the cameras during the night so that the couple could enjoy their evenings in privacy. This decision balanced the couples right to respect for private and family life against the social services departments need to fulfil its obligation to ensure the safety and welfare of the couple and their child.
Source: The Human Rights Act Changing Lives, p.18, based on an example from ATD Fourth World.

Human rights can be used by public sector staff to consider and assess the needs of individual service users

Many of the case studies demonstrate how individuals or their advocates can use human rights to challenge the way they are treated by public bodies. However, many also show that once public bodies are made aware of human rights they can use this knowledge to re-evaluate their services and ensure that the individual needs of service users are taken into account.

This includes the avoidance of blanket policies which risk leading to decisions which are disproportionate and therefore a potential breach of human rights.

Example: Challenging the blanket use of tilt-back chairs in a nursing home
An NHS nursing home in London had a practice of routinely placing residents in special tilt-back wheelchairs, regardless of their mobility. Consequently, residents who were able to walk unaided were stopped from doing so. This had a severe impact on their ability to make choices about everyday activities, as well as their capacity to feed themselves and use the bathroom.

A consultant argued that the failure to consider the different mobility needs of individual residents was contrary to human rights principles. She drew particular attention to the right to respect for private life, which emphasises the importance of dignity and autonomy, and the right not to be treated in a degrading way. The blanket practice was stopped as a result. Residents who could walk were taken out of the chairs and encouraged to maintain their mobility.
Source: The Human Rights Act Changing Lives, p.15

Authorities must take proactive steps to protect people from harm, no matter who or what is the source of the harm

The report highlights the importance of positive obligations, which require public bodies to be proactive rather than simply refrain from action that might violate human rights.

Example: Transport assistance secured for man with mental health problems
An asylum seeker with post-traumatic stress disorder needed to travel from South London, where he lived, to North London, where he accessed medical treatment. He was highly anxious about his pending asylum application. Because of his disorder, he panicked if he was on a bus for more than 10 minutes. He would alight, calm himself down and then wait for the next bus, costing him a lot in fares.

His social services case worker successfully invoked the local authoritys positive obligation to protect the mans right to respect for private life, including his right to respect for psychological integrity, and as a result a bus pass was issued to him.
Source: The Human Rights Act Changing Lives, p.11

Related equality messages (if applicable):

Human rights offer a vision of equality which can protect people from ill-treatment by plugging gaps in the anti-discrimination framework. Some case studies demonstrate the added value of a human rights vision of equality, which extends beyond anti-discrimination to encompass fairness of treatment, dignity, and respect.

This protects people who experience forms of ill-treatment that may not be considered discriminatory and therefore fall outside the protection offered by anti-discrimination legislation.

Other important information

None

Date of review

05.04.2011

• BIHR website - http://www.bihr.org.uk/

We hope that you found the resource helpful and easy to use. Please let us know about other guidance or references that you think we should include. Send us your feedback.