UK tribunals not bound by human rights legislation

[DGRossetti]

Seems to be the TL;DR here.

www.thecanary.co/uk/2018/03/20/dwp-just-won-court-case-literally-allowing-ignore-disabled-peoples-human-rights/

The Department for Work and Pensions (DWP) has just won a court case. It is one which will now set a staggering precedent. Because it effectively means the DWP can ignore benefit claimants’ human rights when it comes to the welfare state.
Precedent setting
Back in November 2016, Jacqueline and Jayson Carmichael successfully beat the government in court over the so-called “bedroom tax”. They argued the tax was discriminatory under the European Convention on Human Rights (ECHR), as Jacqueline cannot share a bedroom with her husband because of her impairments. And the court agreed, setting a precedent for other claimants.
The DWP challenged the decision, but lost.
But as politics.co.uk reported, it was back in court in February. The DWP was using the Carmichaels’ case to try and stop tribunal judges using the European Convention on Human Rights (ECHR) to rule in favour of benefit claimants. Essentially, it’s saying that, if people claim it has broken human rights laws, this evidence will not be admissible under tribunals. And on Tuesday 20 March, a court agreed, ruling that benefit claimants can only argue against the DWP on human rights grounds in the High Court, not at tribunal level.
Ignoring human rights
In practice, the decision means that claimants who appeal benefit decisions will no longer be able to claim the DWP has breached any articles of the ECHR; for example, Article 14, the right to protection from discrimination. And as the Mirror reported:
Lawyers also suggested the ruling may also have serious implications for employment and immigration tribunals.
As I wrote at the time of the court hearing in February:
In January, the government was again found to have violated disabled people’s “basic” human rights. But this time under a ‘counterpart‘ treaty to the ECHR – the very laws the DWP is trying to stop people using. The report said the government had violated the European Social Charter by making benefit payments ‘manifestly inadequate’. That is, the DWP was not giving people enough money to live on; leaving them in poverty. It also said that the UK government must “urgently” reform “the benefit sanctions scheme”.
So, it’s little wonder that the DWP is trying to stop people using the ECHR, when it has breached legislation used alongside it.

Thank you for highlighting this appalling state of affairs

The title to this thread is wrong. UK tribunals ARE bound by human rights legislation. Nothing has changed. The Canary (unsurprisingly) thoroughly misrepresents what has happened. Some other sections of the press don't seem to have understood either (not entirely surprising - the press regularly misunderstand court rulings). This case does not in any way mean that the DWP or tribunals can ignore claimants' human rights. It does not prevent tribunals ruling that claimants' human rights have been breached. The statement that "this evidence will not be admissible under tribunals" is completely wrong as are a number of other statements in the report.

The Human Rights Act 1998 S8(2) is clear that damages for breaches of human rights can only be awarded by the High Court. This is how it has been ever since the HRA became law. Tribunals that find there has been a breach of human rights can only give what is known as declaratory relief, i.e. they can decide the rights of the claimants but cannot award any damages or order anything to be done. The claimant, armed with declaratory relief, is then in a very good position to pursue a claim for damages in the High Court.

What has happened in this case is that the tribunal has overstepped the mark. Having decided that the claimant's human rights had been breached they effectively rewrote the relevant legislation, which they are not allowed to do. They should have left it to parliament to correct the legislation.

There is a statement in the Canary's article that the DWP has rewritten the law without parliamentary approval. That is blatantly untrue. The DWP has not rewritten the law. It cannot do so. All that has happened is that the courts have reaffirmed existing law.

One can, of course, argue that tribunals should be able to award damages in cases where the claimant's human rights have been breached. However, for the 20 years the HRA has been in effect they have not been able to. This case has not changed anything.

Apologies for the incorrect title and thanks for the detailed explanation.

My experience of the concept of human right comes more from the US constitution, which seems applied in a different sense to the ECHR, and can sometimes throw up some odd cases. The last one which had me scratching my head was a ruling that non-state organisations do not have the obligations the state does regarding a persons human rights. Which suggested (at the time) that outsourcing was a way of evading ECHR oversight. I'm sure that's not the case, but the judgement went that way (it was about care homes privately run). In the US the state can't escape constitutional oversight by pretending it's hired a private citizen to do it's work (as police forces that hired burglars to break into suspects houses have found out).

The title is understandable given the misleading reports on this case. Wasn't meant as a criticism of you in any way.

The HRA (and the ECHR) applies to anyone performing a public function. It therefore applies to charities and private sector organisations carrying out public functions. So, for example, if the NHS uses a private hospital to provide care for you, you are protected by the HRA. However, if you use a private hospital in a personal capacity (i.e. not through the NHS) the HRA does not apply. The state cannot escape oversight by outsourcing functions. If you've seen anything that contradicts that post a link and I'll look into it.

My understanding was that the as the ECHR defines the relationship between the state and the citizen, a citizen can use the judiciary to enforce their rights against a private company, as the courts are bound to follow the ECHR.

That said, there was a report a while back where a court seemed to decide that a private care home could not breach it's residents human rights, as it wasn't a state organisation .... the implication being if the government finds human rights tiresome, simply outsourcing a contract to a private firm sidesteps it (Googles "ECHR private care home")

from:

ukhumanrightsblog.com/2013/10/28/human-rights-coming-to-a-private-care-home-near-you/

...

In YL v Birmingham City Council [2007] UKHL 27, the House of Lords held that in providing care and accommodation for residents placed with it by a local authority, a privately owned care home was not performing functions of a public nature within the meaning of the HRA.

This gap was widely criticised and led to section 145 of the Health and Social Care Act 2008, which provides that a person who provides accommodation, together with nursing or personal care, in a care home for an individual is to be taken to be exercising a public function if the services are provided under statutory arrangements (in other words, provided or arranged by local authorities).

...

I notice the subsequent amendments ... whether they are effective ...

The YL v Birmingham City Council case is an interesting one. The decision in the House of Lords was split 3-2. The government had intervened in the case to argue that the care home should be subject to the HRA. It was in many respects a surprising decision as section 6(3)(b) of the HRA is clear that it applies to any person "certain of whose functions are functions of a public nature". The majority of the law lords decided, in essence, that because the care home was fulfilling a contract it was not carrying out functions of a public nature, a decision which flies in the face of both the intent and the actual wording of the legislation. It is notable that one of the law lords involved poured scorn on the idea that an individual nurse or manager could be subject to the HRA but the government amended the law at the first available opportunity to make it clear that such individuals are indeed subject to the HRA.

Section 145 of the Health and Social Care Act 2008 has since been replaced with the Care Act 2014 S73 which extends HRA protection to privately arranged care where there is no state involvement at all. The courts have got the message. I do not expect to see any repetition of the stupidity shown in YL v Birmingham City Council.