Human rights and social housing
The Equality and Human Rights Commission has issued a guide for social housing providers on the application of the Human Rights Act 1998. Elizabeth Wood details the relevant provisions of the HRA and the steps social housing providers can take to ensure their decisions comply.
Social Housing Providers and the Human Rights Act
Under the HRA, social housing providers in England, Scotland and Wales carrying out public functions are legally obliged to deliver their services in a way which respects the human rights of their tenants.
The Equality and Human Rights Commission recently published guidance explaining how human rights law applies to Britain's social housing providers. The guide, Human Rights at Home: guidance for social housing providers, gives practical advice on how the HRA relates to issues including allocation of housing, the terms of tenancy agreements, repairs and maintenance, and anti-social behaviour.
Who does the HRA apply to?
The HRA states that it is unlawful for a public authority to act in a way which is incompatible with Convention Rights unless required to do so by law. Local authorities are public authorities, as are other organisations which carry out public functions.
The Court of Appeal decided in R (Weaver) v London & Quadrant Housing Trust [2009] that a housing association was performing public functions when allocating and managing social housing. The association was therefore required to respect tenants' human rights in doing so. Although the court made it clear that its decision related only to the particular circumstances under consideration, other housing associations are also likely to be subject to the HRA.
Rights relevant to social housing provision
Article 6: Right to a fair trial: Article 6 is an absolute right, which means it cannot be breached or restricted under any circumstances. Everyone has the right to a fair and public hearing, before an independent and impartial tribunal, within a reasonable time. The right to a fair hearing means, broadly, that a person should be given the opportunity to participate effectively in any hearing of their case, and to present their case in conditions which do not place them at a substantial disadvantage when compared with the other party in the case.
Article 6 is likely to be particularly relevant in review or appeal proceedings which would determine a tenant's rights. For example, a person who is subject to a decision-making process in relation to a possible eviction should have access to an interpreter if necessary. Decisions should be given with reasons to ensure transparency.
Article 8: Right to respect for private life, family life and the home: Under Article 8, every person has the right to respect for their private and family life and also the right to respect for their home and correspondence.
Article 8 is a qualified right, which means that any state intervention must be justified, in accordance with the law, necessary in a democratic society, and in the interests of the legitimate objectives set out in Article 8(2). Those legitimate aims are national security, public safety, economic well-being, the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others.
The right to respect for a person's home is not a right to housing, but is a person's right to access and live in their home without intrusion or interference. The right to respect for family life includes the right for a family to live together. 'Private life' has a very wide meaning. Individuals should be able to live in privacy and be able to live their life in the way that they choose. For example, positive steps should be taken by social housing providers to prevent other people interfering with a person's home or private life through anti-social behaviour.
Article 14: Prohibition of discrimination: Article 14 provides that a person must have equal access to the other rights contained in the HRA regardless of race, religion, gender, sexual orientation, disability, political views or any other personal characteristic.
Article 14 is a qualified right. A difference in treatment can only be justified if there is a good reason for the treatment and if it is proportionate in the light of that reason. Article 14 does not list the legitimate reasons which would justify a difference in treatment.
For example, the HRA means that a gay couple has to be treated in the same ways as a heterosexual couple in relation to the right to succeed to a tenancy.
Social housing and the HRA in practice
Those social housing providers which are subject to the HRA will need to ensure that they comply with the Convention Rights whenever they deal with an applicant for housing, a tenant, any other occupier or, in some circumstances, a former resident.
It is important to note that Article 8, which includes the right to respect for a home, does not afford a right to a home or to any particular form of accommodation. It does however contain a right to respect for a home that a person already has. Further, that right is not an absolute right, as accommodation can be taken away in the circumstances provided for by the HRA.
The rights detailed above apply in a variety of circumstances in relation to social housing. Examples given by the Equality and Human Rights Commission's guide are provided below.
Allocation of Housing: An example issue would be where an applicant household complains that they have been registered with a social housing provider as needing a three-bedroom home with a garden in place of their current small flat. They have been waiting six years and still no suitable accommodation has been offered to them. However, this is not in breach of any Article as there is no right to a home or garden in the Human Rights Act.
However, in schemes for managing applications for housing, social housing providers will need to avoid unjustified discrimination (which may be contrary to Article 14) and procedural unfairness (which may be contrary to Article 6). In particular, rules which unjustifiably discriminate between housing applicants on grounds such as marital status, age, gender, disability or nationality may amount to unlawful discrimination under domestic equality legislation and also breach the Convention Rights protected by the HRA.
Terms of Tenancy Agreement: Care must be taken to ensure that the wording of tenancy conditions, or the enforcement of those conditions, does not breach the HRA.
An example of this would be where the tenancy terms on which a social housing provider has made accommodation available provide that the tenant cannot share the home with adults other than those named as ‘authorised occupants’ on the tenancy agreement. If such a term were used to prevent the tenant from having members of his or her family living with them, it may interfere with their Article 8 rights.
Anti-Social Behaviour: Social landlords and other agencies that proportionately take measures to address and control anti-social behaviour will not be infringing any human rights. In extreme cases, a social housing provider's actions may engage with the perpetrator’s human rights to respect for his or her home or private and family life. There will be no infringement of the HRA if the action taken is lawful (usually sanctioned by a court order), is necessary and is proportionate and having regard to the interests mentioned in Article 8 (for example, the need to respect the health or rights and freedoms of others).
For example, a young tenant may be placed in a housing development originally meant for older residents; resulting in complaints of noise and disruption by established residents who seek swift action including the threat of eviction. If the social housing provider immediately issues a notice seeking possession in such circumstances, without having explored what more proportionate measures it could have taken, that might well amount to a disproportionate interference with the new tenant’s right to ‘respect’ for his home.
Termination of Tenancy and Eviction: Article 8 requires that an occupier is given ‘respect’ for his or her home. Eviction is the highest form of interference with that right. For most forms of social housing tenancy, the landlord can only end the tenancy by obtaining a possession order. That system ensures that a court is involved, that a ground for seeking possession is made out and that it is reasonable to evict the occupier.
The Supreme Court held in Manchester City Council v Pinnock [2010] that courts must consider whether the interference with the right to respect for the home involved in eviction is justified. Such justification would involve being able to show that the housing provider is acting in accordance with the law, that its actions are in pursuit of a legitimate aim, and that eviction is both a necessary and proportionate response to the occupiers actions. The second and third of these factors essentially produce a balancing exercise between the human rights of the particular tenant or occupier and the rights of others.
It is good practice for social housing providers to consider, even before starting the process of seeking a possession order, whether the eviction would be a justified interference with a tenant’s rights.
Conclusion
The guidance should help social housing providers identify potential human rights issues and take appropriate action without fundamentally changing the way they work. It also contains a helpful checklist to review existing and proposed policies to check whether they are likely to comply with the HRA.
The guidance shows that respecting the HRA makes business sense for social housing providers, as it will help them to avoid complaints that could lead to expensive legal proceedings from tenants or criticism from the relevant regulators that could damage their reputation. Generally, complaints about human rights are less likely to be made against social housing providers where providers have acted fairly, transparently and proportionately in their dealings with particular individuals.
When complaints are pressed, providers will be better able to deal with them if decision-making about the matters complained of has been supported by clear record-keeping and a clear ‘audit trail’ of what was considered, when and by whom. Claims could be avoided if individuals are provided with clear written explanations of why relevant decisions have been taken, and given opportunities to make representations and in-house rights of review and/or appeal.
The guidance can be accessed here.
Elizabeth Wood is an Associate in the Public Sector and Projects team at Walker Morris. She regularly contributes articles and updates to reach…®, the free Walker Morris knowledge database and alerter service.
