Human Rights and Housing

The impact of the Human Rights Act 1998

Sharon Geary of Housing Rights Service examines the usefulness of the Human Rights Act to housing advisers, in the light of the limited impact it has had on housing decisions so far.

The Human Rights Act 1998, which came into force on 2 October 2000, is one of the most significant pieces of constitutional legislation ever passed in the United Kingdom and makes the European Convention on Human Rights legally binding in all parts of the UK. In making the Convention part of Northern Ireland law, the Human Rights Act enables individuals and organisations to seek legal remedies in domestic courts and tribunals if they believe their rights under the Convention have been violated by a public authority. Generally, the Convention is concerned with civil and political rights rather than social or economic rights, such as the right to a home. Accordingly, there may seem to be only limited implications for housing law. However, there are some articles of the Convention which can be applied in housing cases although, to date, judicial decisions have not been very positive.

Application of the Convention

Several articles can be used in housing cases:

Article 6: the right to a fair and public trial within a reasonable time;
Article 8: the right to respect for private and family life, home and correspondence
Article 14: the prohibition of discrimination in the enjoyment of convention rights
Article 1, Protocol 1: the right to peaceful enjoyment of possessions and protection of property

Right to a home

There is no directly enforceable right to a home to be found in the Human Rights Act. The limitation of the Convention is that Article 8 provides the right to respect for an existing home (Begum v Tower Hamlets [2002] HL). In Burton v UK [1996] 22 EHRR CD 135, the court stated that ‘the Commission does not consider that Article 8 can be interpreted in such a way as to extend a positive obligation to provide alternative accommodation of an applicant’s choosing’.

The meaning of a home

The word home is not defined by the Human Rights Act but case law suggests that it means any premises or shelter used by an individual as her/his home (as in Buckley v UK [1996] 23 EHRR 101 where the definition of home included a caravan).

Furthermore, it would appear that Article 8 ‘is not limited necessarily to those homes which have been lawfully occupied or lawfully established’ (Mabey v UK [1996] 22 EHRR CD 123). Consequently, even a squatter may potentially be entitled to respect for her/his home.

Homelessness

The interpretation and implementation of the statutory duty placed on the Housing Executive towards people who present as homeless may be open to challenge under the Human Rights Act on such issues as:

whether or not there has been a proper and adequate investigation;
the time taken to investigate and make a decision;
a failure to give written reasons;
the adequacy of the appeal procedures;
lack of temporary accommodation to meet the needs of same sex couples.

Housing allocations

A number of issues concerning the implementation of the Housing Selection Scheme may give rise to concerns under the Human Rights Act, for example:

the general age restriction placed on sixteen and seventeen year olds to access the Selection Scheme;
the adequacy of the appeal procedure;
the size of accommodation offered, eg insufficient accommodation may amount to failure to respect family life.

However, in R v Swale BC ex parte Marchant [1998] CO/3442/97, a separated couple had three children who spent alternate weeks with each parent. The court rejected an argument based on Article 8, stating that respect for the home and family life did not require the state to provide two homes that were both large enough to accommodate children of a separated couple.

Succession

Where a tenant dies leaving a family member resident in the property there may be disputes about succession to the tenancy which are affected by the Human Rights Act. The categories of family member are closely prescribed and the failure to allow a succession could be challenged, especially in cases of same sex couples. In Mendoza v Ghaidan [2003] EHRLR 501, the appellant had been in a same sex relationship with his deceased partner, but would only be entitled to succeed to a lesser form of tenancy. This was challenged under Article 8 and Article 14. The House of Lords upheld that Mr Mendoza was being discriminated against on account of his sexuality.

Anti-social behaviour

Article 8 also requires that respect for the home includes peaceful enjoyment of the home. This means that tenants and other occupants who are the victims of nuisance or anti-social behaviour may be entitled to expect assistance from their public authority landlord. In Kroon v Netherlands [1994] 19 EHRR 263, it was held that Article 8 imposes a positive obligation on public authorities to take reasonable and appropriate measures to protect individuals against nuisances of various kinds.

The duties of a public body towards its tenants who are victims of anti-social behaviour were considered in the recent case of Donnelly v Northern Ireland Housing Executive [2003] NICA. In this case, the Housing Executive failed to apply its own procedures for dealing with anti-social behaviour and instead offered to rehouse the victim. The Housing Executive gave a number of reasons for doing so, including concerns about the risk to health and safety of its staff. Applying for a judicial review, it was argued that the Housing Executive acted unlawfully and that failure to take action was in breach of Article 8. The application was dismissed by Mr Justice Weatherup, who found that the risk to personal safety was not an irrelevant consideration and that there was not a breach of Article 8 as the Executive ‘had achieved a fair balance between the appellant’s rights and the public interest in an effective public housing system’. The subsequent appeal was, however, upheld.

In its ruling, on appeal, the Court of Appeal held that the Housing Executive had not discharged its duty to take reasonable and appropriate measures to secure the victim’s rights and that failing and refusing to commence proceedings for possession was in breach of Article 8 of the Convention. However, it also stated that the risk to the personal safety of Housing Executive staff was a relevant consideration. This case is a good example of a court requiring a public authority to justify its decisions in terms of the Human Rights Act. The court requires sufficient information to be made available to allow it to judge whether or not a decision which interferes with rights is necessary and proportionate.

Repairs & condition of the home

The Convention lays down no minimum standard for a home. But, arguably, it will be a breach of Article 8 to leave a person in accommodation unfit for human habitation. Article 8 may be breached if the landlord lets a home in such poor condition that ‘respect’ is not shown or allows conditions to deteriorate to unfitness. However these circumstances need to be extreme as discussed by the court in Lee v Leeds [2002] EWCA Civ 6.

Introductory tenancies

The Housing (NI) Order 2003 provides social landlords in Northern Ireland with the right to adopt an introductory tenancy scheme, which is likely to come into operation in April 2004. The introductory period will last for twelve months during which time the tenancy will be non-secure. To obtain a possession order, the social landlord must follow the correct procedures. Assuming they are followed, the court has no discretion in awarding a possession order. This may be incompatible with Articles 6 and 8. However, a challenge may be difficult in light of the judgement of the Court of Appeal in R v Bracknell Forest DC ex parte Johns & McLellan [2001] CA where it was held that the introductory tenancies do not breach the Con-vention as the availability of judicial review was sufficient to satisfy Article 6 and Article 8.

Eviction from the home

An eviction interferes with an individual’s right to occupy her/his home and therefore would appear to be a breach of Article 8. The leading case on this is Mazari v Italy [1999] 28 EHRR CD 175 which concerned a disabled tenant who was being evicted for rent arrears. The court held that eviction for rent arrears was a legitimate aim but that any action taken by the public authority must be proportionate. Again in Lambeth v Howard [2001] EWCA Civ 468, the Court of Appeal agreed that repossession was an interference with Article 8, but the question for the court was whether the interference was justified in accordance with Article 8(2).
These cases illustrate that, where the rights of occupation have not elapsed, any eviction by a public authority will have to be justified under Article 8(2). However, where rights of occupation have come to an end, it would appear that Article 8 cannot supersede the contractual and property rights of the social landlord (Harrow v Qazi [2003] UKHL 43).

In conclusion, it would appear that the Human Rights Act has not created the positive impact on housing rights that was at first expected. On a positive note the Convention is, in the words of the European Court of Human Rights, a ‘living instrument’ which is interpreted in the light of changes in modern society. The fact that a case has failed under the Convention previously does not necessarily mean that a similar case will fail in the future.