Reaping the benefit

The right to a fair trial, to be enshrined in English law in October by the Human Rights Act 1998, could give solicitors the chance to test the social security system, writes Conrad haley

The effect of the Human Rights Act 1998, which incorporates much of the European Convention on Human Rights (ECHR), is likely to be felt in most areas of the law, and social security is no exception.

Sections 2 and 3 of the Act oblige courts and tribunals determining questions of ECHR rights to take into account the case law of the European Court of Human Rights, and, so far as possible, to read primary and subordinate legislation in a way compatible with them.

S.6 renders it unlawful for a public authority to act in a way which is incompatible with those rights.

These provisions will potentially affect the adjudication process, as well as substantive questions of entitlement.

The adjudication process

Article 6(1) of the European court provides that: 'In the determination of his civil rights and obligations...

everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.'

A decision on a claim for benefit will in the first instance have been taken in circumstances that do not fulfil Article 6 criteria.

It will have been an administrative decision, and there will have been no 'independent tribunal' and 'no public hearing'.

The European court requires that a person has access to a court of 'full jurisdiction' to determine any dispute that arises on account of an administrative decision concerning their 'civil rights and obligations'.

Such a court is subject to the provisions of Article 6 and the consequent procedural guarantees required.

Most commentators agree that in Salesi v Italy (1993) Series A, No 257-E, the European court has now held that the determination of disputes concerning both insurance-based benefits and basic 'safety-net' benefits are determinations concerning civil rights, thus engaging the Article.

Court jurisprudence has developed Article 6 so as to provide:l A right of access to the courtThis can include a right to legal advice and even to publicly funded representation before a tribunal, or more likely before the Social Security Commissioner, in cases where a litigant in person cannot litigate effectively on account on the complexity of the case (Airey v Ireland (1979) 2 EHRR).

This has been implicitly recognised by the Lord Chancellor, both in s.6(8) Access to Justice Act 1999 and within the funding code produced by the Legal Services Commission (see sections 3C-018- 3C-019).

The first publicly funded hearing before the commissioners has now taken place.

The time limits in which to bring appeals, and the very tight conditions upon the bringing of late appeals, might also be vulnerable to challenge as constituting a barrier to access.

l A right to a hearing within a reasonable time.

The Appeals Service is perhaps less riddled with delays than the Social Security Commissioners, but timescales in both systems might be open to challenge.

The general approach to assessing delay is set out in Deumeland v Germany (1986) 8 EHRR 448, and requires consideration of:1) the complexity of the case; 2) the behaviour of the applicant;3) the conduct of the competent courts (temporary backlogs within the court are permissible so long as the state takes 'effective remedial action with the requisite promptness'); and4) the nature of the subject matter.

In the instant case - a social security matter - the court said such cases ought to be shown particular diligence.

l A right to a fair trialThis includes the right to equality of arms, which means that an applicant must be able to present his case under conditions that do not place him at a substantial disadvantage against the respondent.

The procedural rules contained in the Social Security & Child Support (Decisions and Appeals) Regulations appear far from even-handed in their treatment of the parties to an appeal.

This has already been the subject of comment and speculation by the Social Security Commissioners judicially and extra judicially.

Commissioner Jacobs said: 'This is but one example of the way in which the system is structured in favour of the secretary of state' (CDLA 4734/99).

Commissioner Howell said on his Web site: 'The implications for a tribunal process in which the secretary of state, who is a party to every appeal, also makes the rules, is the paymaster, controls the entire tribunal administration and can even set aside the result (s.13(3) Social Security Act 1998) are perhaps too obvious to need stating.'

Such considerations also influenced Mr.

Justice Morrison in Smith v Secretary of State (EAT 11 October 1999, unreported).

The much-maligned Housing and Council Tax Benefit Review Boards are already to be scrapped and replaced.

These boards comprised councillors from the authority responsible for the decision in dispute, (contrary to Article 6).

From April 2001 such appeals will now be administered by the Appeals Service .

Earlier, Article 6 challenges failed on grounds of being premature (R v LB Hammersmith & Fulham ex parte Tsfayo 31 January 2000, unreported), but appear certain to succeed if brought after the 2 October.

Appellants ought to consider whether to request that the proceedings be adjourned until the Appeals Service takes over, balancing the prejudice caused by such a delay against the unfairness that may result from an earlier hearing before a board.l A right to a public hearing.

With respect to Appeal Tribunals, this requirement is probably satisfied because, despite the advent of 'paper hearings', the appellant retains the right to opt for an oral hearing, (Schuler-Zgraggen v Switzerland (1993) EHRR 405).

The Commissioners invariably determine appeals on the papers, and oral hearings are granted at the discretion of the Commissioner.

Arguably, the current position is compatible, where applications are refused only where there are good grounds for believing that nothing will be gained from oral argument.

Finally, a note on the discretionary social fund.

There is no provision for oral hearings before the Social Fund Inspector.

However, the application of Article 6 is dependent upon whether it can be demonstrated that entitlement to a payment is an 'actual right recognised in law' (Masson and Van Zon v the Netherlands (1996) 22 EHRR 491).

It may be doubted whether there is a 'right' to, say, a Community Care Grant.

Substantive entitlement

Although the ECHR cannot be used to argue for the creation of benefits which do not already exist (X v Germany (1967) 23 CD 10), a number of articles might become engaged in relation to the conditions of entitlement to existing benefits.

Article 8 provides for the respect for private and family life, and is aimed at preventing arbitrary interference by public authorities.

The concept of family life has been held to encompass not simply marriage-based relationships, and the concept of respect for private life includes a person's physical and psychological integrity, so as to 'ensure the development, without outside interference, of the personality of each individual in his relations with other human beings' (Botta v Italy (1999) 2 CCLR 61).

It would seem to provide some support in respect of challenges to provisions which might result in family break-up (such as the withdrawal of child benefit from asylum seekers), or the failure to make provision for same-sex couples.

Article 14 prohibits arbitrary discrimination by a public authority in relation to matters that fall within the ambit of an ECHR right.

This was used as the basis of a challenge to the non-availability of Widows Benefit to men (see Willis v UK (1999) 5 EHRLR), and see below.

Article 1 of the First Protocol provides for the peaceful enjoyment of possessions.

In Muller v Austria (1975) 3 DR 25, the European Commission on Human Rights considered the property rights in a compulsory contributory pension scheme and held that the Article was applicable.

However, it said that it gave a right to payments from the fund but not to any specific sum.

The Commission and the court confirmed this approach in Gaygusuz v Austria (1996) 23 EHRR 364.

A Turkish national who had worked and paid contributions in Austria was refused an advance on his retirement pension because he was not an Austrian national.

The court found a violation of Article 14 linked with Article 1 of the First Protocol.

It appears that the Article has relevance only to insurance-based benefits.

Whilst at first sight challenges to the conditions of entitlement may appear promising for the claimant or potential claimant, Article 8 and Article 1 of the First Protocol are subject to the familiar exceptions of 'economic well-being', 'the general interest' and so on.

It remains to be seen how the courts will approach the matter, but it is tentatively suggested that Article 6 may provide the most fertile territory for litigation.

Conrad Haley is a project solicitor at the Public Law Project