As part of BIHR's 15 Days of Action to mark the 15th anniversary of the Human Rights Act (HRA), we are marking landmark moments in the Act's history. Today we are celebrating year 2 of the HRA and focusing on the important case of Bernard v Enfield London Borough Council, on the right to respect for family life for a disabled woman housed in appropriate accommodation.
Mrs Bernard is married with six children. Back in 2000 the family moved into local authority accommodation after their family home was repossessed. Mrs Bernard uses a wheelchair, lives with diabetes and incontinence and is cared for by her husband. The local authority housing was not properly adapted to her needs. Mrs Bernard could not access the top floor of the house and was confined to the lounge. This meant she couldn't take care of her children, including bathing them and putting them to bed. The local authority knew that the housing was inappropriate for the family; their care plan said the family needed assistance to move to a suitably adapted property. But the local authority failed to take action for 20 months, so Mrs Bernard and her husband took legal action using the right to respect for private and family life (protected by Article 8 of the HRA).
The right to respect for private life includes protecting people's wellbeing and 'physical and psychological integrity'. Public authorities not only have to ensure that they don't interfere with this right wherever possible, they also have a duty to take positive steps to protect this right where they know it is at risk.
Looking at Mrs Bernard's circumstances, the court found that the local authority's failure to act on their own care plan showed a lack of respect for the family's right to respect for private and family life. Importantly the court ruled that the council had failed in its duty under the HRA to take positive steps to enable Mrs Bernard and her family to lead as normal a family life as possible, which would have safeguarded Mrs Bernard's physical and psychological integrity and restored her dignity as a human being.
This cases, early on in the HRA's life showed how the positive duty on public authorities to take steps to protect our rights can have a real impact on people's everyday lives. Had the local authority looked through the lens of the HRA in this situation, they would have recognised their duty to take steps to protect her rights and acted on their care plan much sooner.
The power of the HRA isn't simply about courtrooms, and it has much to say even in times of austerity. Fast forward a few years to 2010, when the British Institute of Human Rights began our innovative project working with advocacy organisations empowering them to use human rights to support people using health and care services. One of the advocacy organisations, based in the Midlands, were working with a client in a very similar situation to Mrs Bernard.
'Blabir' was 48 when she suffered a major stroke which left her needing to use a wheelchair. Like Mrs Bernard, she was unable to access the top floor of the small council house she shared with her two teenage sons. The local authority refused to adapt her house saying that Balbir could strip-wash in the kitchen and use the commode in her living room, which had also become her bedroom. As Balbir had IBS, she had to rely on carers to come and empty the commode. Balbir and her two sons lived like this for over a year until she got help from the local advocacy service who were working with BIHR. After receiving human rights training from BIHR, Balbir's advocate supported her to write a letter to the local authority explaining that she thought her living conditions were humiliating and in danger of breaching her right to be free from degrading treatment (protected by Article 3 of the HRA). As a result, the local authority carried out an assessment and adaptations were made to her home, including building an accessible downstairs bathroom with shower.
Balbir's story shows the power of the HRA to make a real difference to people's lives in those "small places, close to home" (to quote one of my human rights heroes, Eleanor Roosevelt). We don't need to be lawyers to use this piece of law. Thanks to very clever drafting, the duty on public officials to respect and protect our rights means that we can all use the language of human rights in our "small places" to discuss problems with our public services and negotiate solutions. There was no magic wand in Balbir's case, and no new house plucked from thin air; it was about making sure the local authority knew the detrimental impact of their decision on her day-to-day life, that they had a duty to act and finding a practical solution to protect her rights. That's what the HRA gives us; that's how we can all use it.
For more information about these real-life, out of court examples see BIHR's resources here.