Protection from discrimination: for ombudsman schemes

Human rights law promotes equality and forbids discrimination on a number of grounds. The protection against discrimination in the Human Rights Act is not ‘free-standing’, but must have affected your enjoyment of one or more of the other rights. However, you do not need to prove that this other human right has actually been breached. Human rights law may not protect you from discrimination in all areas of life.

In England and Wales, the Equality Act 2010 offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions. Organisations carrying out public functions are subject to the duties not to discriminate on any of the 9 protected characteristics listed in the Equality Act 2010 and to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.

Human rights treaties include a clause that says the rights and freedoms given in them must be applied without discrimination on the basis of race, sex, religion, political opinion, national origin and so on. Such clauses usually end with the phrase ‘any other status’, which means that the list is not exhaustive.

For example, disability, sexual orientation and age may not be mentioned in some earlier treaties, but the European Court of Human Rights (ECtHR) and the UN treaty monitoring bodies have since made it clear that discrimination on such grounds is not permitted under human rights law. The courts have also found ‘other status’ to include, for example: lone parents (SG v SSWP [2015] UKSC 16), nationality, illegitimacy, marital status, sexual orientation and membership of a trade union.

(National Union of Belgium Police v Belgium App. No.4464/70; (1975) 1 E.H.R.R. 578.

This position is backed up by the introduction of specialist treaties for groups considered to need special protection.

Certain groups have special protection, given in specialist treaties, the General Comments of UN monitoring bodies, and case law of the ECtHR, including:

• children
• disabled people
• women
• ethnic minorities

The rights and laws developed for these groups not only underline the principle of non-discrimination, but set out the steps public authorities must take to make equality a reality.

What to consider

Individuals could belong to more than one group. When handling complaints, you should be mindful of multiple protected characteristics that could increase the potential disadvantages faced by the individual. You should investigate all the relevant areas as appropriate.

The UN Convention on the Rights of the Child (UNCRC) recognises that children are entitled to special care and protection.

It defines children as anyone under the age of 18, unless a particular law concerned gives them majority earlier.

Obligations

Human rights apply to children as they do to adults. Public authorities must recognise, respect and protect children as rights-holders, independent of their parents or guardians, and as ‘unique and valuable human beings’ with ‘distinct needs, interests and privacy’. They must empower children to claim their rights and make their views known.

Main principles of the convention

The CRC has identified 4 key articles that guide the implementation of all the rights in the convention (CRC General Comment No. 5 2003).

Article 2: Non-discrimination

Article 2 protects children from discrimination on the basis of their own or their parents’ and guardians’ circumstances. Human rights apply to all children equally. Public authorities must not discriminate, but they should prioritise the needs of the most disadvantaged or vulnerable. They are:

• children in detention
• children deprived of their family environment, such as children in care, street children and homeless children
• child refugees
• unaccompanied children during repatriation
• disabled children

The CRC emphasises that non-discrimination does not mean identical treatment.

Article 3: Best interests of the child

Public and private bodies  such as care homes, hospitals and schools, the government and the judiciary should make the best interests of the child a primary consideration in all actions concerning children.

Article 6: Life, survival and development

Article 6 protects the right to life, as well as the full physical, mental, spiritual, moral, psychological and social development of children. States and their agencies should aim to achieve optimal development for all children.

States also have a duty to prevent all forms of violence against children, including ‘physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse’ (Article 19 UNCRC). They must investigate and punish those responsible. The fundamental assumption is that ‘no violence against children is justifiable; all violence against children is preventable’ (General Comment No.13 2011).

The CRC has said that corporal punishment is incompatible with the convention; it has also been condemned by the European Court of Human Rights in several judgments (Tyrer v UK 1978; Campbell and Cosans v UK 1983; Costello-Roberts v UK 1993; and A v UK 1998).

Article 12: Free expression and respect for views

Children who can form their own views should be able to express them freely in all matters affecting them. Authorities should seek representative views from children – for example, of adopted children on adoption law and policy – and give their views due weight.

This is particularly important in health, education, custody and care arrangements, as well as courts and tribunals. Authorities should provide age-appropriate information to children so they can form views, and provide an accessible environment to express them.

Education

Article 29 sets out the purpose of education to:

• develop children to their full potential
• develop respect for human rights and fundamental freedoms
• develop respect for themselves, their parents, and for civilisations different from their own
• prepare for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality and friendship among all peoples
• develop respect for the environment

School exclusions may have an impact on a child’s development and the right to education.

Health

In addition to the human rights that can be engaged by health issues (see also health services and social care: human rights for ombudsman schemes), Articles 6, 23 and 24 of the UNCRC provide for the rights of disabled children and the right to the highest attainable standard of health for children generally.

The CRC also issued General Comment No.4 2003 on adolescent health, recognising that this swift period of change poses particular challenges to a child’s health and development. It encourages public authorities to create safe and supportive environments, and provide health information so they can make better choices and avoid risky behaviours. Adolescents should also have access to counselling and health services for mental and sexual health.

What to consider

In complaints concerning children, you should consider the key principles of this convention in tandem with other relevant human rights law. You should not assume that it was enough for a public authority to find out the wishes of only the parents or guardians.

Organisations should be able to provide evidence that:

• the best interests of the child were a primary consideration
• they treated the child with dignity and respect
• they considered how to achieve the child’s full development potential
• they have listened to the views of the child and given due weight to their opinions

In cases that involve the right to be free from inhuman or degrading treatment, the threshold for the severity of the treatment may be set lower for children.

Your obligations

The convention also applies to your ombudsman scheme. In complaints involving children, the child is usually the aggrieved person, but the parent is the complainant. As part of taking a human rights based approach, you should aim to get the views of the child directly if the child is involved in a complaint, with the parent’s consent.

The key principles of the CRPD are:

• respect for the dignity and autonomy of disabled people
• non-discrimination
• full inclusion and participation in society
• respect and acceptance of disabled people as part of humanity
• equality of opportunity
• equal access
• equality between disabled men and women
• respect for children with disabilities as they grow and develop

Obligations

Reasonable adjustments

Reasonable adjustments are covered by UK legislation under the Equality Act 2010. In Article 2 of the CRPD they are referred to as ‘reasonable accommodation’, but the principle is the same. All public authorities, including schools and hospitals, as well as private bodies have a duty to provide reasonable adjustments so that disabled people can enjoy their human rights in the same way as everyone else.

Reasonable adjustments are most likely to apply in socio-economic rights concerning, health, education, employment, adequate housing and social security. Public authorities may also need to make adjustments so that disabled people can enjoy their rights to freedom of expression and freedom of religion. You can also read about the provision of facilities for disabled people under the right to private and family life.

Benefits

A reasonable adjustment could involve an extra room in a house to accommodate a carer or medical equipment. A change in UK housing benefit rules (commonly known as the ‘bedroom tax’) which capped payments for ‘extra’ rooms was ruled discriminatory in certain circumstances under Article 14 of the ECHR (Burnip v Birmingham City Council 2012).

Planning

Planning authorities must also make reasonable adjustments for disabled people. For example, a planning authority refused permission for a home extension to house a water therapy pool for a disabled woman because it contravened the city’s development plan. The Committee on the Rights of Persons said the decision was disproportionate and discriminatory, and violated Articles 5 (equality and non-discrimination), 25 (health), 26 (rehabilitation) of the CRPD (CRPD Communication No. 3 2011).

Consideration should also be given to Articles 3 and 8 of the ECHR when considering cases like this one.  

Undue burden

Public authorities may try to justify not making an adjustment by arguing that it would impose ‘a disproportionate or undue burden’ on them (Article 2, CRPD). The burden is on them to make this case, not on the disabled person to persuade the authority than an adjustment is reasonable. The starting point is that adjustments should be made for disabled people to enjoy their human rights.

Inhuman or degrading treatment

Public authorities have a duty to ensure conditions do not constitute inhuman or degrading treatment, the threshold for which may be lowered when considering the particular needs of disabled people. For example, in D.G. v Poland 2013 the ECtHR found that a disabled prisoner’s rights had been violated when his medical needs were not adequately accommodated during his detention, such as through the provision of wheelchair-accessible toilets.

Mental health conditions and learning disabilities

People with mental health conditions or learning disabilities can face substantial barriers to exercising their independence and autonomy.

Public authorities sometimes mention mental health conditions as reason for not consulting a person about decisions affecting them, but everyone has a right to be involved in decisions relating to their care.

A human rights based approach calls for supported decision-making, in which people are given the help they need to understand a situation, express their wishes and make decisions. This is very different from substituted decision-making, when it is done for them.

What to consider

Common complaints made by or on behalf of disabled people include those about:

• healthcare and treatment
• special educational needs assessment or provisions
• planning decisions
• refusals to make adequate reasonable adjustments
• accessibility issues, such as the means of communication with organisations

You should be aware that it is up to public authorities to provide evidence that making an adjustment is unreasonable or places an undue burden on it.

It is likely that complaints about reasonable adjustments may be made under the Equality Act 2010, but it is still possible that a body may fail to make reasonable adjustments under human rights law.

Your obligations

Your ombudsman scheme must also make reasonable adjustments for disabled people. This includes making your literature and information accessible to people with sensory impairments or learning disabilities. If someone is complaining on behalf of a disabled person, you should make every effort to communicate with the disabled person, including those with mental health conditions or learning disabilities.

Human rights law gives special protections to women because of:

• persistent discrimination against women
• persistent inequality between men and women
• the particular circumstances of pregnancy and maternity 
• the greater likelihood that they are the victims of domestic and sexual abuse

This UN convention focuses on equality between women and men in all areas of life. It defines discrimination against women as:

any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

Obligations

Attention to the needs of women should extend throughout public services, including to social care settings and detention facilities.

The UN committee monitoring CEDAW set out its concerns about the UK’s compliance with the convention in its Concluding Observations 2013. Its recommendations included:

• reducing the disproportionate impact of austerity measures on women and women’s services
• ensuring effective access by women to courts and tribunals, following changes in legal aid for divorce and domestic abuse cases
• to improve access to healthcare, social services, education and employment for women, especially older women, disabled women, and ethnic minority women

See also our responses to CEDAW’s Concluding Observations and other work.

Pregnancy and maternity

Article 12 of CEDAW entitles women to special assistance with pre-natal and post-natal care, including free services where necessary, as well as ‘adequate nutrition’. Public authorities must make adjustments so that pregnant women can access the services they need.

The ECtHR has considered many cases relating to pregnancy and childbirth, and has established that unreasonable state interference with a woman’s wish to have her baby at home could violate her right to private and family life.

Restraining pregnant prisoners during childbirth could be considered inhuman or degrading treatment.

Domestic abuse and sexual violence

The state has a duty to protect women from domestic violence under the right to be free from inhuman or degrading treatment and the right to private and family life and to ensure they can enjoy their rights without discrimination. The ECtHR has acknowledged that domestic violence has a different and disproportionate impact on woman compared with men (Opuz v Turkey 2009).  

What to consider

All public authorities must give women equal protection, which does not necessarily mean the same treatment as men. Sometimes different treatment is needed to remove barriers to equality.

When you receive a complaint involving women’s rights it is helpful to remember CEDAW’s definition of discrimination above, and consider any relevant areas regarding the UK’s compliance with the convention that the Committee has commented on.

You should also consider the circumstances under which women are entitled to special protection under the convention.

Ethnic or racial minorities are given special protection under ICERD and the Council of Europe’s FCNM. The conventions cover the rights of all people to enjoy civil, political, economic and social rights without discrimination on grounds of race, colour, descent, national or ethnic origin.

Article 27 of the ICCPR also says:

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their religion, or to use their own language.

People who are not nationals of the country they live in, such as migrants and asylum seekers, are recognised under human rights law as vulnerable.

Obligations

In addition to preventing and avoiding discrimination, public authorities have a duty to remove barriers that ethnic minorities face to enjoying their human rights, including language, cultural and religious barriers.

Language

People whose first language is not English rely on translation of important information and interpretation services. Public services should have procedures in place to ensure that translated materials and interpretation services can be made available to those who need them.

Health services should have effective interpreting policies so that children and family members are not being relied on to interpret medical consultations. Schools may need to offer language support to children whose first language is not English.

Culture and religion

Public authorities should be aware of the cultural or religious needs of people from different backgrounds. This may involve sensitivity around the treatment of different generations, special dietary requirements, and making suitable space available to practise religion.

Migrants and asylum seekers

Under human rights law, the position of migrants and asylum seekers is somewhat different from ethnic minorities who are nationals of the country they live in. Certain differences in treatment are acceptable – for example, non-nationals are not allowed to work, may not claim certain benefits, and may have to pay higher fees at university. They may, however, be entitled to certain levels of healthcare. See also the right to health for asylum seekers.

What to consider

When a complaint involves someone from an ethnic minority group, you should be aware of:

• any language, cultural or religious barriers they face
• all aspects of an individual’s identity, including any links between ethnicity, culture, religion and language

For complaints involving Irish Travellers or Gypsies, you should understand the persistent disadvantages they face in most areas of life, including health, education, planning and employment. These groups are consistently singled out for positive action in treaty monitoring reports.

In complaints concerning non-nationals, you will need to understand the law relevant to the complaint, and whether it excludes non-nationals from accessing a service. You should investigate and comment on any lack of clarity in the law, rather than its desirability.

Your obligations

You may need to consider language or other barriers when communicating with a complainant or aggrieved person, make translated material available, or use an interpreter to talk to the individual concerned about their experiences.

• Complaint to a health trust about the care of an elderly relative
• Use of Do Not Attempt Resuscitation notices
• Homophobic bullying in prisons
• Working with police forces on stop and search
• Making reasonable adjustments for a customer’s accessibility needs