Damages under the Human Rights Act 1998Q: Which remedies are likely to be awarded by a court or tribunal considering a case that raises arguments under the Human Rights Act 1998?A: Section 8 of the Act provides that a court can grant such relief or remedy, or make such order within its powers as it considers 'just and appropriate'.

Thus, under section 8 a court may grant any of the familiar remedies -- that is to say, damages, declarations, injunctions -- so long as the remedy granted falls within its jurisdiction, and is effective, taking into account the particular circumstances of the case.Damages should not be considered as a 'general right' for claimants bringing actions under the HRA 1998.

They will only be awarded, where the court is satisfied that they are necessary to afford 'just satisfaction' to the claimant.

A court must take all circumstances into account, and must consider whether another remedy has been made in relation to the act in question.Furthermore, a court must examine the consequences of any decision -- taken by that court or any other court -- in respect of the breach.

When seeking an award of damages under the HRA 1998 it will be for a claimant to persuade the court that other available remedies would not provide 'just satisfaction'.

The concept of 'just satisfaction' has been established by the European Court of Human Rights, and incorporates the need to ensure that a claimant is put in the position they would have been in had the breach of the convention right not occurred.When determining the amount of damages to be awarded under the HRA, the court must have regard to the principles established by the European Court.

As yet, no damages have been awarded by a court under the Human Rights Act.

However, claimants should be aware that where a court awards damages with reference to the European Court principles, as opposed to domestic law principles, the amount awarded is likely to be much lower.It is important to remember that section 4(2) of the Human Rights Act provides a new remedy in the form of a 'declaration of incompatibility'.

Claimants who have suffered a violation of a convention right are unlikely to view a declaration of incompatibility as a satisfactory remedy.

However, such declarations serve to draw public awareness to areas of law that fall foul of the European Convention on Human Rights, and put pressure on the government to implement changes to the law.Social security administrationQ: My client has claimed a social security benefit, and has been told that he does not satisfy the 'National Insurance number requirements', because his wife is an 'overstayer' and so cannot be allocated one.

They also say that her passport is out of date and is not acceptable evidence of identity.

What remedies are there?A: Section 1(1B) of the Social Security Administration Act 1992 states that all claims must be accompanied by:-- A statement of the person's National Insurance number and information or evidence establishing that that number has been allocated to the person; or information or evidence enabling the National Insurance number that has been allocated to the person to be ascertained, or;-- The person makes an application for a National Insurance number to be allocated to him which is accompanied by information or evidence enabling such a number to be so allocated.This requirement is placed upon both the person making the claim and any other person in respect of whom he is claiming benefit.The answer lies in two parts:-- National Insurance numbers and allocation policy.

If it is the policy of the Department of Work & Pensions to exclude certain categories of person from being able to get an National Insurance number, then this would seem to breach your client's rights under article 8 of the European Convention.

He would either have to separate from his wife to receive benefit, or live with her in destitution.

Equally, there appears to be a breach of articles 8 and 14, as he is the subject of discrimination on account of his marriage to a person from abroad.

Such a policy can be challenged as unlawful on that basis.Alternatively, the National Insurance number requirements should be construed so as to apply only to him, because his wife is not another person 'in respect of whom he is claiming benefit'.

This is because the Income Support Regulations provide that your client cannot receive benefit for his wife in any event, because she is a 'person subject to immigration control', (as defined in section 115 of the Immigration and Asylum Act 1999).-- The National Insurance number requirements have been met by the provision of sufficient information and evidence.

The allocation of a National Insurance number involves an examination of the available evidence so as to determine whether or not somebody has proven their identity to the reasonable satisfaction of the officer dealing with the matter.

The immigration status of a person does not in general have any relevance to the allocation of National Insurance numbers or at the very least is not determinative of the application.Reliance on a prescriptive and exhaustive list of acceptable documentary evidence may well be unlawful.

Similarly, insistence on the production of a particular document to the exclusion of all others and which the claimant may not even have (because it is held by the Home Office), may similarly be unlawful.

Unless there are genuine reasons to doubt the authenticity of documents already supplied by the claimant, they will have discharged any burden of proof that may be upon them.

In any event, where exclusionary rules operate, arguably the burden is on the secretary of state to prove that they have been made out.These arguments should be put to the department's solicitors in a letter before action threatening judicial review, (together with a claim for interim relief).